Saturday, March 04, 2006

"English-Speaking American" Told to Tone it Down

A Denver public works employee is told he cannot wear a "US Border Patrol" hat to work. He's also told to cover or remove the "English-Speaking American" sign, and the American flag, from the trailer on his truck.


mythago said...

They're concerned that people will associate his message with his employer.

Wearing the hat to work is moronic--dude, you don't WORK for the Border Patrol--but by all means, let him have his bumper sticker. People need to know which lawn service not to call.

Robert said...

Sorry, mythago, I'm confused. You have to work for an organization to sports its cap? I have a "USS Ronald Reagan" cap, given to me by my uncle; it's a cherished possession. Do I have to enlist in the Navy before I can wear it? I've got a "Cleveland Cotton Gin" cap, from a cousin, under similar circumstances. Needless to say, I've never as much as touched a cotton plant.

As for the bumper sticker - I'm not sure why knowing that a business owner spoke English would be a disincentive to call them. Mutual communication is often a necessity in order to do business.

nobody.really said...

Interesting case. It reads like a law exam. As far as the article goes, no one is trying to sanction the employee for wearing his hat or driving around with his sign on his own time. The issue seems to be whether he can do so in the county parking lot.

Issue 1: Do any anti-discrimination laws or public policies bar an employer from disciplining an employee for wearing a hat and driving a vehicle onto the employer’s premises that offend the employer?

Generally under at-will employment, an employer can fire you for any reason or no reason unless it’s one of the suspect categories (race, gender, age, etc.) or violates some public policy (retaliation against whistleblowers, etc.) As far as I recall, the First Amendment’s guarantee of free speech generally does not constrain the employment relationship. If we were discussing a private employer, the employee would be out of luck. Try alleging age discrimination?

Issue 2: Does the First Amendment limit governmental discretion when the government is acting not in the role of government, but in the role of employer?

I don’t know the answer to this - not because the problem doesn’t come up, but because it comes up so often that civil servants are often covered by employment contracts barring discipline except for cause. These employment contracts tend to displace the Constitutional issue.

If the First Amendment does govern, then we’d need to determine the level of deference the court would accord to the government. I tend to collapse freedom of speech with freedom of religion: the employee claims he’s acting on the basis of principle, which looks religion-y to me. I understand that Congress has (perhaps unwisely) adopted the Religious Freedom Restoration Act, requiring courts to give strict scrutiny to government policies that impinge upon religious views. But I’m a long way out of my field here.

Issue 3: If the employee may not be disciplined except for cause, does the conduct constitute cause for discipline?

Would third parties attribute the employee’s conduct to the employer?

Is he causing harm to the employer’s reputation that would harm the employer’s competitive position?

Is he creating a hostile work environment?

Dunno. Hope not. Whatever the employee's intentions in this case, it would be a shame to create case law that discouraged people from advertising bona fide occupational qualifications, even if they do offend people's sensibilities.

After all, traditionally actresses would advertise their measurements on their resume. Is it any better than advertising your language proficiency? These practices may subtly pander to prejudice, but hey - that's not illegal.

mythago said...

Robert, if you are a government employee, and wear the cap of another government agency while on duty, you might very well be misrepresenting yourself. Take out the English-language issue and have the guy wearing an "FBI" cap and it might make more sense.

I'm not sure why knowing that a business owner spoke English would be a disincentive to call them.

He doesn't speak English all that well, actually. His bumper sticker is ungrammatical and uses the painful double exclamation point.

But thank you for the feeble attempt to pretend all the bumper sticker said was "English speaker".