A Ray of Sunshine in the Second Circuit’s Recent Opinions on Public Employee Free Speech Rights

The Second Circuit has recently handed down a number of decisions denying public employees’ First Amendment claims, right up until this past Wednesday. While the decisions have been reached on varying grounds, each one necessarily implicates the seminal Supreme Court decision in Garcetti v. Ceballos, which I’ve written about previously here and here.

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Stokes v. City of Mount Vernon: Garcetti Revisited

I keep meaning to blog about a recent decision that came down in the Southern District of New York concerning a public employee’s free speech rights under the First Amendment, but Wait a Second beat me to the punch.

I wrote previously about how a Supreme Court decision dramatically curtailed the free speech protections of public employees, resulting in some odd incentives. In the case at hand, the question concerns the legality of retaliation by a government entity that does not have a direct employer-employee relationship with the person whose speech is in question. As Wait a Second writes:

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Free Speech and Government Employees: Garcetti and Absurd Results

The intersection of First Amendment law and employment law can be fascinating — and can lead to extremely bizarre outcomes. In the last post, I discussed how the Court’s interpretation of the First Amendment led it to allow churches to, say, fire a minister for becoming pregnant, even where the religion itself has no inherent problem with pregnant ministers.

In this post, I want to discuss how the Court has interpreted the First Amendment to allow governments to retaliate against employees for exposing corruption — but only if the employee’s job is to expose corruption. Make sense? I didn’t think so.

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Discriminating Religiously: Hosanna v. EEOC

The Supreme Court recently handed down a unanimous decision stating that a religious organization can discriminate in any way it wants to against any employee considered to be a “minister.” This means, essentially, that a church can discriminate against an employee for any reason, so long as it can show that the individual has “a role in conveying the Church’s message and carrying out its mission.”

In a slightly more technical post, I discuss my legal quibblings with the holding. But here I want to focus on what the case actually means: someone got sick, and her employer decided that, no matter what she or her doctors thought, she probably wasn’t going to be good at her job anymore, or her illness would be too much of a hassle, or maybe her boss was just irrationally scared of sick people — lots of bosses are, that’s why we have the Americans with Disabilities Act. No matter. She got fired because she was sick, and the Court essentially said, too bad.

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Hosanna in the Details Part II: Leaving the Worst for Last

A more general overview of my views on the decision can be found here.

In Part I, I discussed how existing employment law could have been used as a framework to resolve the dispute in Hosanna without implicating any complex questions of church and state, so long as the courts were clear that reinstatement was not an available remedy. I argued that the existing pretext analysis would have allowed the court to find that Perich (the plaintiff) was discriminated against because she was disabled, and the court could have done so without implicating any First Amendment or Establishment Clause issues.

In Part II I want to complicate matters and discuss a hypothetical scenario in which the church’s beliefs actually do come into play, a situation in which the fact that the employer is a religious organization actually matters. Essentially, I want to argue that the most complex questions involved — who counts as a “minister” and what does a “minister” do in a given church — should be the final tier of analysis, reached by the court only when all else has failed.

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