June 10 Labor & Employment Law Update

Written by: Crystal M. O'Brien, Esq.

Federal Update: Can Workplace Discrimination Result From Email Blasts?

Public-sector employees enjoy a right to freedom of speech in the workplace that private employees do not similarly hold. This is because the First Amendment of the U.S. Constitution assures governmental employees the right to speak publicly on matters that should be transparent. The interest promoted is fairness and equality of governmental actions. In contrast, private-sector employees can be legitimately disciplined for communications which run afoul of their employer’s business interests.  

So it follows: when is the right to free speech not protected when an employee engages in a racially-charged email campaign? In Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., a May 20, 2010 published opinion, the 9th  Circuit federal court of appeals reviewed this question. In Rodriguez, a community college professor challenged the observance of Dia De La Raza (translated from Spanish as Day of the Race) as a Hispanic holiday and alternative to observing Columbus Day. The professor began his protest by sending emails to members of his college-employer’s listserv queries regarding whether racial discrimination was truly a bad thing when, according to the professor, “America did not become the mightiest nation on earth without distinct values and discrimination” and asserted that “[o]ur survival depends on discrimination,” among other racially charged opinions. Employees offended by the professor’s emails and, perhaps more so - the college’s failure to overtly discipline him - alleged they worked in a hostile workplace that permitted harassment on the basis of race. The employees were certified as a class but their lawsuit failed. The federal appellate review upheld the trial court’s dismissal of the action.

The Rodriguez court reasoned that free speech protections cannot suppress a public employee’s communications merely because they may be perceived as offensive. So long as free speech communications are not directed at any one party, the right to speak freely will be afforded to the speaker. Moreover, the court examining the steps the college took to deter the professor from using the email system freely to promote his personal politics resulted in the Rodriguez court’s satisfaction that the college had met its statutory duty to take sufficient steps to halt “harassing” conduct. The court concluded that the college was not required to terminate the professor --- even though the offended employees preferred as much.

This well-written and very interesting opinion can be read in full by clicking here. To learn more about the delicate balance between free speech rights and management of public-sector employees, see here. 

As always, our Labor & Employment Law Department is always happy to lead your workplace seminars on topics like free speech and more.  To schedule your next seminar, contact Crystal M. O’Brien at (800) 899-MMCI (6624) today.

California Update: Determining What Is Morally Unfit

In Broney v. Cal Com. on Teacher Credentialing, an elementary school teacher challenged the loss of her teaching credential, which was occasioned by her third DUI conviction.  Under California law, all credentialed teachers must withstand an administrative character review, part of which involves evaluating the teacher’s criminal record/ background check.

In Broney, while evidence revealed the teacher was not considered an abuser of alcohol, the revocation of her credential following a third conviction in a 7-year period was upheld by the California Court of Appeal.  This is because the type of conduct at issue speaks to the teacher’s lack of professionalism, the closeness in when the convictions occurred, the circumstances surrounding, and the significance the conduct had on the teacher’s ability to serve as a role model, among others were all weighed such that looking past her convictions was not possible. 

To read the full opinion, please click here.

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