Reasons Not to Limit Private-Employer-Imposed Speech Restrictions: A Constitutional Right Not to Associate?

As I mentioned yesterday, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and this week and next I'd like to serialize it here.

Tuesday and yesterday, I blogged the Introduction and the beginning of the argument in favor of such statutes; today, I turn to some arguments against such statutes (and you can see the whole article right now, if you'd like, by looking at the PDF).

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Some have argued that employers have a constitutional right to refuse to associate with people whose political beliefs they reject.[1] But the Court has never extended the right not to associate that far.

The Court has held that the Constitution prohibits government action that substantially burdens "expressive association" by interfering with groups' ability to speak, including by choosing who speaks for them (more on this shortly).[2] It has held that the Constitution prohibits government action that substantially burdens "intimate association," so people would likely have a constitutional right to discriminate based on politics—as well as religion, sex, race, and other factors—in choice of spouses, adopted children, close friends, or roommates.[3]

But, in the words of Justice O'Connor's concurrence in the judgment in Roberts v. U.S. Jaycees, "there is only minimal constitutional protection of the freedom of commercial association";[4] she said this about membership decision by the Jaycees and similar nationwide organizations, but that even more clearly applies to employment. During the Lochner era, employers' right not to associate with people who engage in conduct of which they disapprove was indeed seen as protected by substantive due process[5]—but that time is long gone.[6]

And, of course, we see this in the courts' acceptance of employment discrimination laws generally, including of bans on employment discrimination based on religion. Employers lack the constitutional right not to associate with, say, Catholics or atheists or Satanists; they likewise lack the constitutional right not to associate with Republicans or Democrats or even Communists or Nazis. (Note that bans on employment discrimination aren't upheld on the grounds that they burden associational rights but nonetheless pass strict scrutiny; they are upheld on the grounds that they don't burden associational rights at all.[7])

Some employers may claim rights under a state or federal Religious Freedom Restoration Act or constitutional religious freedom provision, if they claim their religion precludes them from hiring people who have certain political beliefs or who engage in certain speech. (I focus here on employers other than churches or similar religious organizations; such organizations may well have Religion Clauses rights to choose clergy and teachers of religion based on whatever criteria they want.[8]) Such claims, though, should be relatively rare, just as Hobby-Lobby-type claims to exemptions from employer health insurance mandates were raised by only a few employers. And courts might also find that denying such exemption requests from political discrimination bans passes strict scrutiny, as they generally have with regard to bans on discrimination based on race, sex, religion, and the like.[9]

[1] Martin Redish & Christopher R. McFadden, HUAC, the Hollywood Ten, and the First Amendment Right of Non-Association, 85 Minn. L. Rev. 1669, 1703-19 (2001).

[2] See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 622–63 (1984).

[3] See, e.g., id. at 619–20 (spouses); Wilson v. Taylor, 733 F.2d 1539 (11th Cir. 1984), abrogated on other grounds, see Scala v. City of Winter Park, 116 F.3d 1396, 1402 n.4 (11th Cir. 1997); Fair Housing Council of San Fernando Valley v. Roommate.cm, LLC, 666 F.3d 1216, 1221–22 (9th Cir. 2012) (roommates).

[4] 468 U.S. at 634 (O'Connor, J., concurring in part and concurring in the judgment).

[5] See Coppage v. Kansas, 236 U.S. 1, 19–20 (1915) ("Can it be doubted that a labor organization—a voluntary association of working men—has the inherent and constitutional right to deny membership to any man who will not agree that during such membership he will not accept or retain employment in company with non-union men? Or that a union man has the constitutional right to decline proffered employment unless the employer will agree not to employ any non-union man? . . . And can there be one rule of liberty for the labor organization and its members, and a different and more restrictive rule for employers? . . . [T]he employer has the same inherent right to prescribe the terms upon which he will consent to the relationship, and to have them fairly understood and expressed in advance.").

[6] See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187 (1941) (recognizing that Coppage has been overruled, because the government has "the power . . . to deny an employer the freedom to discriminate in discharging").

[7] See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 78 (1984).

[8] See infra note 34.

[9] See, e.g., State by McClure v. Sports & Health Club, Inc., 370 N.W.2d 844, 852 (Minn. 1985) (religious discrimination and marital status discrimination in hiring); McLeod v. Providence Christian Sch., 160 Mich. App. 333, 345 (1987) (sex discrimination in hiring); Fiedler v. Marumsco Christian Sch., 631 F.2d 1144 (4th Cir. 1980) (race discrimination in admission to schools); Brown v. Dade Christian Schs., Inc., 556 F.2d 310 (5th Cir. 1977) (likewise); see also Bohemian Club v. Fair Emp. & Hous. Com., 187 Cal. App. 3d 1, 14 (Cal. Ct. App. 1986) (ban on sex discrimination in hiring would pass strict scrutiny, even if it were seen as implicating a private club's associational rights).