Annie Kuo (AK): Welcome back to Discovery, the University of 麻豆社区 of Law Podcast where we explore new legal scholarship, emerging doctrinal challenges and conversations that shape the future of law. I'm your host, Annie Kuo Becker, and today we're diving into a topic that sits at the crossroads of the First Amendment rights of expressive association, anti-discrimination law and the American workplace.
Professor Elizabeth Sepper is a leading scholar whose work spans across religious liberty, health law and equality. She teaches at the University of Texas School of Law and joins us today to talk about 鈥淓xpressive Association at Work鈥, her forthcoming article in the Michigan Law Review, co-authored with James Nelson and Charlotte Garden.
Professor Sepper was recently here at 麻豆社区 Law to present the Tony Rembe Lecture about this new piece of legal scholarship. In this episode, Professor Sepper will discuss how courts have begun extending the expressive association doctrine, famously articulated in Boy Scouts of America v. Dale, into the employment context, enabling some employers to challenge anti-discrimination laws on First Amendment grounds. This has implications for workplaces and the future of civil rights protections.
Elizabeth, we're so glad to have you with us. Welcome to Discovery.
Elizabeth Sepper (ES): Thank you for having me.
AK: So, to start and lay down foundations for our listeners, what is expressive association, and why does Boy Scouts v. Dale matter?
ES: Expressive association is a right rooted in the First Amendment. So, it's the idea that people come together to express a message in associational form, that we unite our voices around a common cause. So, in its origin, there were cases that involved NAACP, engaged in political advocacy. That's sort of the core of the expressive association right.
But it extends further than that to other groups, where members come together to express. Boy Scouts of America v. Dale was a 2000 case that involved what now has become a sort of commonplace conflict between the First Amendment and anti-discrimination laws protecting LGBTQ people. So, there you had a Boy Scout leader who was gay, and the boy scouts had dismissed him from his position as a volunteer leader in the organization. And New Jersey law extended to the Boy Scouts and prohibited such discrimination. So, the Boy Scouts came ultimately to the Supreme Court and argued that that law as applied to Dale violated their expressive association rights.
And Boy Scouts created this sort of three-step test to understand whether the expressive association right has been violated. First, you have to have an expressive association, an organization that comes together to speak has something in its membership that expresses a message. Then, there has to be a substantial burden on its ability to express the message. So, in the Dale case, the question was, does having Dale as a leader mean the Boy Scouts can't speak a message of disapproval of homosexual conduct that they said they had? And then finally, on balance, does the state's interest, usually an anti-discrimination law, justify the infringement of the constitutional right?
And Boy Scouts was a big deal because the Supreme Court said the Boy Scouts could discriminate. And not only that, but it said that courts had to defer to the organization, both on the question of, what's your message 鈥 here, we don't like gay conduct 鈥 and also about the level of burden, I'm burdened by this law if I have to comply. And so there were a lot of concerns back in 2000 that Dale would mean lots of nonprofits and organizations that have commercial functions would be able to assert expressive association rights against anti-discrimination laws, and that really didn't come to pass until very recently.
AK: Yeah, and is it true that the first case applying Dale to the employment context appeared 18 years after the ruling, if Boy Scouts v. Dale was in the year 2000?
ES: Yeah, so only in 2018 did we get a decision from a district court that an employer had a right to expressive association and would not need to comply with their city ordinance that prohibits discrimination based on reproductive decision-making, and this wasn't a small-scale employer. The case involved Crisis Pregnancy Center chain, but also the Archdiocese of St. Louis, and so approximately 100 schools where the judge effectively exempted the employer from this anti-discrimination law.
AK: Is there some significance in that gap between 2000, you know? Why did it take so long that now courts are suddenly shifting and becoming quick to treat employers like expressive membership organizations?
ES: So, I think the through line is the Hobby Lobby case. So, this is the litigation against the contraceptive mandate, where you had employers, both nonprofit and for-profit, that argued that they had religious rights not to comply with the Affordable Care Act's requirement that contraceptive be covered in their health plans. And I think that's the origin for a couple of reasons. One, that's where we first see these claims being made. There were expressive association claims made by employers in lots of those cases, challenging the Affordable Care Act in 2013. And I do think Hobby Lobby, to some measure, gave a boost to the idea of corporate First Amendment rights and to First Amendment rights of employers over their employees, and so after Hobby Lobby is when you start to see these kind of claims start to come up.
AK: So, that's sort of the genesis of this new extension of expressive associations to workplaces, but offering little justification by the courts. Would that be accurate to say that they're not really explaining why this is happening?
ES: We've now seen a number of opinions from courts, and they offer very little in the way of explanation of how you go from membership organizations, civic groups, the NAACP, to the employment context 鈥 sometimes large employers, sometimes small ones, but still a hierarchical structure that doesn't look like voluntary associations. They usually just say something like, as members are to their voluntary groups, so are employees to employers. But that's just a tautology. It's not an explanation of how employers come to be within the expressive association.
AK: Can we talk about how workplaces are fundamentally different from civic associations?
ES: My co-authors and I draw several lines that separate voluntary organizations from employment relations. The first of these has to do with the purpose of coming together, and that in voluntary organizations the purpose is something like shared values, shared message, shared identity, right? Churches, for example. Whereas in employment, the goal is financial gain for the firm and for oneself, but the firm's financial gain is foremost. And this means that when people enter voluntary organizations. They're there for intangible benefits, for fellowship, for belonging, and they're making voluntary choices where they're not coerced. When you're going to work, if you're lucky, you have choice of workplace. But most of us don't have a choice whether to work or not, and many people don't have meaningful choice about leaving or coming into any particular workplace. So, there's a lot of coercion through financial dependence.
There's also a difference around hierarchy and egalitarianism. In the workplace, you have a boss who tells you what to do, and what you're told to do is to further the goals of the firm, not your own personal inclinations. In voluntary groups, the governance is usually much more egalitarian. People have some sort of voice in the organization.
And then finally, there's something in the measure of social expectations that we expect book clubs and political parties to have shared values and ideals and identities, whereas we think of workplaces as characterized largely by difference 鈥 difference in identity, characteristics, conduct and values.
AK: I wanted to go back to, you mentioned the emphasis on how workplaces are hierarchical and employers maintain this minute-to-minute control over employee speech. How should these structural differences shape court's analysis of expressive association claims, especially when distinguishing between leadership roles and then line employees? Because, I guess, the leadership roles come with more of an expectation that they speak with authority on behalf of the organization.
ES: Yeah, so a through line in the expressive association doctrine is the notion that leaders are different from line members of civic or voluntary organizations. Leaders or high-level managers speak for the group. They will be thought to speak for the group, whereas your everyday member may not. And this also matters for thinking about, well, what happens when you go home and you speak, is your speech attributed to your employer? Probably not. Now, maybe, if you're the CEO of the company, some of your speech or conduct outside of the workplace would be attributed to the organization. So, in the law, control is key to thinking about employment. You know who an employee is if you know that the employer has a right to control. So, the firm's right to control means that they are an employee.
Now, leaders are harder to control, and they're harder to control because they set policy. They make decisions, right? Firms require people to act, and so the firm may need, for example, to dismiss a leader, lest a message be associated with the firm in the way that it wouldn't make a lot of sense with the employee. So, if you have an employee who's speaking messages in the workplace that counteract the firm's own message, you control them. You tell them no, you issue discipline and ultimately might be able to fire them. None of that will come into conflict with labor or employment regulation, nor will then the expressive associational right come into play at all. Leaders could be thought different because they just can't be controlled in the same way. And that is certainly aligned to some extent that the expressive association doctrine has drawn.
AK: Say a school principal shares personal views on their social media page, and then dissenting parents or people that disagree with their views then complain to the school board or the administration of the school. How would we apply what we're just now talking about to that sort of situation, specifically?
ES: We're talking about public school principal, because states, municipalities don't have constitutional rights, right? So, what we know, if we know anything, is a public school is not an expressive association. They have no expressive associational rights. They don't have any constitutional rights. So, what if we were talking about a private school, and then that changes the sort of interest on the part of the employee as well, which makes it a little more straightforward. A principal of public school has first amendment rights as an employee that you don't have in a private workplace.
Let's say we have a private school principal who is fired for making comments on social media and there are complaints from parents. So, the initial question would be, is the school an expressive association? I think normally the answer is probably no, and probably no because all schools speak, all schools bring people together, but that does not turn them into an expressive association. And if they have any goals, those goals are educating youth, right? Just as a broad proposition, that's the mission. And if that's the message, then it's not clear that having a principal 鈥 provided he's not saying, you know, girls shouldn't be educated, for example, which might countermand that message, right? 鈥 it's not. I don't think that's much of an expressive association.
Who they choose as a principal may not actually indicate any shared values or commitments.
Now, they can discipline the principle within the contours of employment law. Some states, though, prohibit, for example, firing because of political speech, and that's where we might see a conflict. Even if we had an expressive association, the question would be, does maintaining that principle in place substantially burden the ability of the school to express its own message?
So, there's a couple things the school could do normally. They can engage in counter speech. So, they could say, you know, what this principal did was wrong. We strongly disagree with it. This is not part of our values. He's operating outside of the workplace. And do more to sort of separate out employee speech from the speech of the organization.
Now, maybe because he's a leader, we think that the speech is too closely attributed to the institution, and so having to retain him under these laws would substantially burden the ability to speak, and then we'd have to sort of balance the state interests in having people engage in political discussion without employment consequence.
AK: And a principal making these statements on their personal social media page, that's going to be different than like a teacher or a janitor at the school because of these hierarchical controls.
ES: Yeah, so it's going to matter. The position of a person within an organization matters for thinking about whether their membership expresses anything to the world, right? We believe in this person, and we have the same values, and everything they do is us. It's also going to go to substantial burden in that it's likely that an organization can speak and its message won't get confused, no matter what a, you know, theater director or janitor or, you know, cafeteria director does or says, and so that they would be able to continue to speak without any impairment.
AK: Thank you so much for illuminating on that for me. It was a burning question in my mind during your visit. So, a key part of your argument in the article 鈥 or during your talk 鈥 is that outsiders rarely assume employees personal identities or off-duty conduct represent the employer. How should courts think about the difference between an employee's identity, an employee's expressive conduct and the employer's message, and why does that matter for anti-discrimination law?
ES: Boy Scouts of America v. Dale confused things with regard to expressive association. So, there's a broad reading of it that says the mere presence of a gay person in Boy Scouts communicates a message so loud that the Boy Scouts now can't say that they oppose gay equality. Now, I should say Boy Scouts no longer take this position. They have switched their position. They did not adhere to it for so long after Boy Scouts of America v. Dale. But if that were right, that would effectively end anti-discrimination law in lots of organizations of civic life, setting aside employment for now. If that extends into employment, it seems to mean that employers could simply say, right, having a woman with small children in the workplace counterman's our values that women shouldn't work when they have small children, right? You could see lots and lots of implications.
Now, the line between conduct and identity, as my example, just signaled, is not always so clean in any case. But when employees engage in speech outside the workplace, we do know that, especially with the rise of social media, that their employers may learn of that speech. We also know that sometimes consumers of the employer's products know of that speech or learn of it, and do demand firing. Now I would say, you know, a number of people are quite sympathetic to this view because they think, for instance, of say, a personal trainer in a gym who makes antisemitic comments, right, and they call for him to be fired, or someone who advocates for the Nazi party or something.
Now, a number of states have laws that prohibit firing someone because of their political speech or political party participation, and those laws would apply. Now, maybe the core problem then, for those who think there should be repercussions in this way, one, I think, is to think 麻豆社区 the democratic process, and think that we're better off having these kind of contests resolved through the legislatures of the states, rather than set in stone as a matter of constitutional doctrine. And legislatures will be able to balance employee and employer rights. In the realm of expressive association, the employer right to expressive association leaves essentially, very little room to think about the interests of employees, including in political speech and participation. And I think you know, those who are a little perturbed by the idea that there may not be repercussions for political speech also, of course, need to consider examples that are more amenable, perhaps, to their values, and wonder about whether it's worth it to achieve a universe where people engage in political speech generally without losing their jobs, even if much or some of that political speech will be political speech that is disfavored, right, by the particular person.
AK: And if we veer a little bit from the politics to religion, which is an area of your expertise, you noted that although expressive association is formally available to any organization, religious employers are the ones who most often are prevailing. To what extent is religion driving court's willingness to expand expressive association doctrine, and what are the risks of building First Amendment doctrine, primarily through religious exemption cases?
ES: So, religion is playing a major role in speech doctrine, I would say, in a number of areas and ways. So, in the expressive association context, we see these religious employers primarily, though not exclusively. And I do think they're prevailing due to the Hobby Lobby effect, essentially. A lot more affinity for corporate claims of constitutional rights and corporate claims that fly in the face of employee interests. So, we're seeing some of that, and I think it makes courts more favorable to their claims, because they also think to themselves, well, maybe there just aren't that many religious employers, and maybe we think they're more sincere.
Now that's not part of expressive Association doctrine at all. The doctrine and the right apply equally to secular and religious people, or at least it should. So, I think that's part of what is driving this is this religious identity. But across the board, we're seeing speech and religion mix, right? For example, the Supreme Court had the 303 Creative case involving a website designer who didn't want to design websites for same sex couples who are marrying. Her case, fundamentally, was about religious objection. It was her religious beliefs that meant that she did not want to serve any gay couple, but the Supreme Court instead took it only as a speech case, saying that the anti-discrimination law compelled her to speak. So, we see this sort of toggling back and forth, but using religion as a way, I think, to create sympathy for what might otherwise be quite unsympathetic institutions demanding outs from anti-discrimination law.
AK: What risks exist for LGBTQ+ workers, reproductive health and beyond?
ES: So, having employers receive an out from anti-discrimination law is likely to result in serious burdens for marginalized groups and lots of different kinds of marginalized groups 鈥 LGBTQ people, people of reproductive age, probably racial minorities, maybe members of disfavored religious groups. It also, I think, more broadly, balkanizes. So, the underlying notion of an employer is expressive association is that we aren't places of diversity, we aren't places of pluralism. We all need to be the same and support the same values within a firm, and if that's right, then we no longer work together. We all have to find a place where we fit, or we have to conform ourselves to whatever there is that we can get. So, we get both balkanization and real pressure of conformity from employers onto employees. It's not like we don't already have this, right? Firms are really involved in workers' lives in ways that are coercive and even manipulative of what people can do inside and outside the workplace.
AK: And so that leads to one of the final questions in terms of the implications for democracy and everyday work. Let's talk about the broader social and democratic stakes. In the talk, you describe the workplace as one of the last major spaces where people interact across differences. We referred to this earlier. And then you also warn against creating a 鈥渕oral marketplace,鈥 in employment. So, what's at stake for democratic life if employers gain strong expressive association rights over the composition of their workforce?
ES: Yeah, so employers have a lot of power, and increasing power. They're able to set wages. There's not nearly the kind of competition that we would expect to see and want to see. They have enormous amounts of control over our financial lives and our economic survival. Granting employers expressive association rights gives them control over many larger parts of life, not just as a practical matter. Many states don't have any protection at all. You can be fired for anything, including your political speech, but the backstop of anti-discrimination law is there at the federal level and often at the state level, with regard to LGBTQ status or gender or religion, and that's an important backstop to ensure that we have workplaces that look Like America, that have people with lots of different beliefs who have lots of different family structures and skin colors and the like.
That is lost in a system where the Constitution means that every employee coming into the workplace expresses something for the firm itself. And once we get into that sort of thinking, we've constitutionalized not just financial coercion, but coercion over our political choices, our civic organizational choices, our associations with our fellow Americans. And that really constrains the freedom of individuals outside of work. And most of us are never going to own a company. We're never going to employ anyone. So, it's really, again, a constitution of haves and have-nots, ultimately.
AK: Any final thoughts on where the doctrine might go next, or what courts should do?
ES: I think courts should be very skeptical of claims of expressive association coming from employers. I think they have to be very careful when it comes to religious organizations, due to the way that the religious doctrine has been turbocharged along a number of dimensions.
Some courts have sort of taken an out. They've tried to use other doctrines under the First Amendment 鈥 in particular, doctrines around religion 鈥 to try to avoid the expressive association issue. Ultimately, it can't be avoided, and I don't think it can be minimized either. One might think this was an issue of nonprofits, that has not been a dividing line in the doctrine, and even if it were, one out of 10 citizens of the United States work in a nonprofit. It's an enormous employer, level with manufacturing, right? So, I think it's really important that people understand what's at stake, and that this is not an application of right, that is a right that will apply to everyone.
AK: Professor Sepper, thank you so much for joining us today and for sharing your insights on the new scholarship piece coming out in the Michigan Law Review: 鈥淓xpressive Association at Work.鈥 Your work highlights how deeply our legal doctrines shape everyday democracy and life at work.
Thank you.
ES: Thank you for the conversation.
AK: Professor Elizabeth Sepper's articles have appeared in top law reviews, and she is co-editor of Law, Religion and Health in the United States. At the University of Texas School of Law, she teaches health law, torts and reproductive rights.
For listeners who want to dive deeper, keep an eye out for her forthcoming article in the Michigan Law Review, as well as her broader scholarship on religious liberty, health law and the growing entanglement between government institutions and religious identity.
You've been listening to Discovery, the University of 麻豆社区 of Law podcast. You can find more episodes and faculty scholarship on our website, law.uw.edu. Thanks for listening, and we'll see you next time.
