By interesting coincidence, there were two new court decisions reported last week in which employees lost their jobs due to statements that they made concerning their religious beliefs about homosexuality, and lost subsequent claims for damages based on First Amendment claims. In Dixon v. University of Toledo, 2012 Westlaw 370577 (N.D. Ohio, Feb. 6, 2012), the district court rejected a university administrator's claim that she had been unconstitutionally discharged after she published an op-ed article in a local newspaper. In the other, Walden v. Centers for Disease Control and Prevention, 2012 WL 371871 (11th Cir., Feb. 7, 2012), the court of appeals affirmed a decision by the U.S. District Court for the Northern District of Georgia, rejecting the claim of a counselor who lost her position with a contractor for the CDC's Employee Assistant Program after she communicated her disapproval of same-sex relationships to a CDC employee who came to her for counseling.
Clashes between expressions of religious belief and the continuing expansion of public institutional policies against sexual orientation discrimination are emerging as a major area of First Amendment contention, and these rulings are consistent with a trend in the case law that has dismayed some advocates for religious freedom but cheered some advocates for LGBT workplace rights.
Crystal Dixon was employed as Associate Vice President for Human Resources at the University of Toledo, an institution that has a policy banning sexual orientation discrimination. Her personal religious views about homosexuality were known to some other administrators, but had not surfaced in a public way until she felt a need to respond to an opinion piece published in the Toledo Free Press, a local weekly newspaper, on April 4, 2008, expressing the view that the modern movement for gay rights was a historical analogue to the African-American civil rights movement, in the context of pointing out the inconsistency that the University of Toledo offered domestic partner benefits at one of its campuses but not the other. The author of the article also chided Ohio for dragging behind other jurisdictions in providing civil rights protectiong for gay people.
Dixon's response to this, published on April 18, 2008, objected to the idea that gay people are "civil rights victims," asserted that homosexuality is a "choice," and that there were many disparities in employee benefits between the two campuses. Dixon referred to herself in the op-ed piece as "an alumnus of the University of Toledo's Graduate School, an employee and business owner" but did not mention her position at the University. She did not tell her superiors at the University that she was writing this, so they were blindsided.
The response was immediate; she was placed on administrative leave and when the president of the University returned from an overseas trip, he published an op-ed in the Free Press repudiating Dixon's opinions about homosexuality and mentioning her position with the University. Dixon was fired after a disciplinary hearing at which she read a statement insisting that she had never discriminated based on sexual orientation in her work at the University and was speaking as a private citizen in her op-ed piece.
The court found that her speech was that of a private citizen rather than of an employee, that it was on an issue of public concern, and thus that it was entitled to First Amendment protection unless the University's legitimate interests outweighed her free speech interests. In this case, the court found that the balance favored the University, which argued that Dixon was in a position where she had authority over employment actions, that her statements could damage the University by disrupting the Human Resources Department, that it could interfere with the University's diversity efforts, and that it could lead to challenges to her personnel decisions based on charges of anti-gay bias or hostile environment, including discrimination charges and lawsuits. At least one gay member of the Human Resources staff had written to University officials stating that Dixon's op-ed piece made him uncomfortable and led him to question her professionalism. The court found that the University convincingly argued that her statements could interfere with its interest in recruiting a diverse faculty.
"Thus, the balance of Plaintiff's interest in making a comment of public concern is clearly outweighed by the University's interest as her employer in carrying out its own objectives," wrote District Judge David Katz. "Therefore, Plaintiff has failed to establish that her speech was protected." The court also rejected the argument that the University's "speech policy" was "impermissibly vague," finding that "the damage she did to her ability to perform her job and to the University provide ample justification for her termination." The court also rejected an equal protection claim, finding that Dixon had failed to show that there was a relevant comparator employee who had made similar sorts of controverisal public opinion statements and had not been subjected to discipline or discharge. The court granted the University's motion for summary judgment.
In the 11th Circuit case, Circuit Judge Stephanie K. Seymour of the 10th Circuit, sitting on the panel by designation (there is an acute shortage of active judges on the 11th Circuit in light of its caseload), wrote for the court in rejecting Marcia Walden's First Amendment claim.
Walden was hired by Computer Sciences Corporation (CSC), a CDC contractor, to work as an Employee Assistance Program (EAP) counselor at the CDC, and she agreed to be bound by the EAP Guidelines and Procedures, which require that EAP services be made available to all CDC employees in the Atlanta-area facilities "regardless of the nature of their personal or organizational issues related to work or life." Walden's work was also subject to her employer's policies, which required her to "adhere to principles of inclusion and diversity."
Walden is a self-described "devout Christian who believes it is immoral to engage in same-sex sexual relationships," and who believes that her religion "prohibits her from encouraging or supporting same-sex relationships through counseling, meaning that she may not provide relationship counseling to individuals in same-sex relations," wrote Judge Seymour. In July 2006, she referred a gay client to an outside counselor and discussed the referral with her supervisor, CSC's EAP Director, Gordon Hughes, who said he was comfortable counseling gay clients but, she claims, provided no guidance about how she should handle any future conflicts due to her religious beliefs.
On August 21, 2007, she began an initial intake counseling session with a CDC employee who told her that she had been in a same-sex relationships for 18 years, raising a son with her partner, and needed to discuss trust issues that had arisen in the relationship. Writes Judge Seymour, "Concluding that Ms. Doe's need for same-sex relationship counseling conflicted with her religious beliefs, Mrs. Walden told Ms. Doe that she could not provide her counseling because of Ms. Walden's 'personal values.'" As Ms. Walden testified: "I looked at her, and I told her that I could see she was in pain, and I wanted to make sure she got help. But after hearing what she had to say, based on my personal values, I recognized I was not the best counselor for her… I also told her that I realized that my personal values would interfere with our client/therapist relationships, and that wasn't fair to her."
This proved upsetting to the client, who felt that she had been "judged and condemned" by the counselor to whom she had gone for assistance, and she also felt that Walden's "nonverbal conduct communicated disapproval of her relationship." The client contacted Hughes to complain about Walden's treatment of her. Hughes spoke with Walden, telling her that she should have handled the matter by saying she was inexperienced with relationship counseling and would need to make a referral, but Walden "refused to use this approach, and told him, 'I couldn't say that I don't have relationship experience, because I would be lying to the client,'" and she persisted in this position in her conversation with Hughes.
The court provides a detailed discussion of how the complaint navigated its way up the chain of command through CSC and CDC. Ultimately, Walden was removed from her position under CSC's contract with CDC, at the request of CDC officials. She was laid off, not terminated, and told she could seek a different assignment with CSC, but at the time CSC's only EAP operation in the Atlanta area was its contract with CDC, and Walden did not apply for positions at other locations, instead filing suit in July 2008 against CSC, CDC, and CDC officials who had asked for her to be removed from the contract.
Looking at this case under the precedent of Garcetti v. Ceballos, 547 US 410 (2006), this looked like a case of government speech in which the First Amendment freedom of speech would not play a significant role. "Nevertheless," wrote Seymour, "where an employee or contractor's free exercise rights are a substantial or motivating factor in her termination, we evaluate her claim under the balancing test originally provided in Pickering [v. Bd. of Educ., 391 US 563 (1968)]. That is, we balance the First Amendment rights of the employee or contractor against the interests of the government 'as an employer, in promoting the efficiency of the public services it performs through its employees.'"
Here, the court found that Walden had failed to show that the CDC officials had "called for her removal from the EAP contract due to her religiously-based need to refer clients who needed same-sex relationship counseling. Instead, the record is clear that [they] removed Ms. Walden because of the manner in which she handled Ms. Doe's referral, and because they were concerned that she would behave the same way if a similar situation were to arise in the future. And, significantly, Ms. Walden testified that it was not part of her 'religious beliefs' to tell clients, including Ms. Doe, that she could not counsel them due to her religious beliefs or personal values. Instead, she said that she wanted 'to be honest with my clients.' She further explained that 'it seemed unfair that [Ms. Doe] was able to talk about being gay and lesbian, and yet I couldn't freely talk about me and my religious beliefs, or being Christian… To me, it's about honesty. If she can be honest — I mean, I should be honest about why I'm transferring her.'" In other words, Ms. Walden's comments to the CDC officials led them to conclude that she could not adhere to program policies.
Since the evidence showed that it was how she behaved in dealing with the client rather than her beliefs, as such, that motivated CDC officials to ask that she no longer be employed in the AEP program at their facility, the court concluded that Walden's religion was not being burdened, as such. Although Walden raised some arguments about what was going on, claiming that she had not been properly understood, the court decided that in resolving the issues in this case, it needed to exam the perspective of the employer and the employer's understanding of what was happening, since the issue was whether the employer acted from an unconstitutional motive. Here, the court found that the CDC officials had acted reasonably in investigating the client's complaint, and had come to a conclusion, reasonable in the circumstances, that Walden was not amenable to avoiding such problems in the future by refraining from communicating her disapproval of same-sex relationships to clients. The court found that the CDC officials enjoyed qualified immunity in light of how they conducted themselves in this case.
The court also concluded that Walden failed to make out either a free exercise retaliation claim or a valid claim under the federal Religious Freedom Restoration Act, following a similar line of reasoning. "On this record," wrote Judge Seymour, "no reasonable juror could conclude that their decision was based on Ms. Walden's religious objections to counseling clients in same-sex relationships, rather than the manner in which Ms. Walden handled Ms. Doe's referral and their understanding that Ms. Walden would not alter her behavior in connection with future referrals," so once again, the defendant officials enjoyed qualified immunity from her constitutional claims.
Although Walden claimed in this case that she could conform her future behavior to the requirements of the program, the court found that she had never communicated to CSC or CDC officials dealing with the problem that she was willing to change her behavior, as she repeatedly insisted that she would have to be "honest" with clients about why she could not counsel them.
As to her constitutional claims against her direct employer, CSC, the court accepted CSC's defense that as a private, non-governmental entity, it was not bound by the First Amendment, and, as the court had already concluded that her removal from the EAP program at CDC did not burden her free exercise of religion, she could not maintain a RFRA action against the contractor either. Furthermore, it was clear that CSC did not remove her from that position out of any anti-religious motivation of its own; under its contract with CDC, it had to remove her if the CDC officials requested her removal. CSC's subsequent decision to put her on layoff was not seen as retaliatory, since they could have terminated her entirely, but instead encouraged her to apply for another position within their company, which she failed to do. "CSC provided Ms. Walden with access to internal career and employee reassignment services and encouraged her to seek other employment within the company," wrote Seymour. "As a result of Ms. Walden's own decision not to seek other employment opportunities, her layoff became permanent."
The court also affirmed the district court's judgment that Walden failed to make out a claim of religious discrimination under Title VII of the Civil Rights Act. Such a claim could only run against CSC, her employer, and for the reasons already discussed, the court found no prohibited motivation. CSC laid her off because the CDC, exercising its contract rights, asked that she be removed. CSC offered her a reasonable accommodation for her religious beliefs — an opportunity to transfer to another position — which she declined, found the court. The court found support for its conclusion in Bruff v. North Mississippi Health Services, Inc., 244 F.3d 495 (5th Cir. 2011), a case with "facts strikingly similar to those here," in which an employee with anti-gay religious beliefs lost her position due to the employer's conclusion that she could not fulfill the requirements of providing services on a non-discriminatory basis.
Both of these cases show that in balancing public employer and employee rights under the First Amendment, courts are finding a public employer's commitment to non-discrimination based on sexual orientation as an important enough interest that the public employer can take action against an employee whose conduct, based on their anti-gay religious beliefs, threatens to undermine the employer's non-discrimination policy.
The closest we've come to a Supreme Court ruling in this area is the Christian Legal Society v. Martinez case, where the Court rejected a First Amendment challenge to a public university's refusal to grant recognized status to a Christian student group whose membership policies conflicted with the University's non-discrimination policy, but that opinion was written in a rather narrow fashion that doesn't necessarily resolve these workplace issues. One suspects, in light of the number of such cases that have been surfacing in the lower federal courts lately, that this issue will eventually capture the attention of the high court.