July/August 2003 Issue Number 49

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed.

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Consider This...

Fire-Rescue International , August 22-25, 2003, Dallas, Texas. Linda Willing will be presenting a workshop entitled "Stop "Putting Out Fires": A Prevention Approach to Workplace Conflict Management."

IAFF Human Relations Conference January 25-28, 2004, Santa Monica, CA. Linda Willing will be presenting a workshop at this conference. For more information, go to www.iaff.org.

Landmark Supreme Court Decisions 

Affirmative action and gay rights were on the agenda during the last week of the US Supreme Court’s session, and the resulting decisions promise to have repercussions far into the future. 

In two cases involving the University of Michigan, the Supreme Court upheld the basic principle of affirmative action, as well as supporting the value of diversity among students of higher education. In a 5-4 ruling upholding affirmative action policies at the University of Michigan law school, Justice Sandra Day O’Connor wrote that the value of diverse classrooms extends far beyond the campus. She said, "Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized." Support for affirmative action programs was given in the form of amicus briefs from leaders of higher education, business, and the military. 

A second case regarding affirmative action was decided against the university, because the system was "not narrowly tailored to achieve the interest in educational diversity" according to Chief Justice William Rehnquist, writing for the 6-3 majority. However, this decision only struck down the method for promoting diversity, not the concept itself. 

A Texas case involving privacy issues and gay rights led to an affirmation by the Supreme Court of equal protection for gays and lesbians under the Constitution. Writing for the 6-3 majority, Justice Anthony Kennedy wrote, "The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons." He further stated that the continuance of anti-sodomy laws among consenting adults "demeans the lives of homosexual persons" and that such laws serve as "an invitation to subject homosexual persons to discrimination both in the public and private spheres." Justice Sandra Day O’Connor, writing in a separate concurrence, said, "A law branding one class of persons as criminal solely based on the State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review." 

Proponents of gay rights have likened this case to the watershed Brown v. Board of Education decision, which opened the door to school integration, and later the 1964 Civil Rights Act. Several organizations, including Wal-Mart and Cook County, Illinois, have modified policies to be more inclusive of gay employees since the court’s decision. 

Sources: Associated Press, June 23, 2003
            Grutter v. Bollinger, USSC 02-241
            Gratz v. Bollinger, USSC 02-516
            Lawrence et al v. Texas, USSC 02-102

One third of the women employed at the U.S. Mint in Denver have filed a complaint alleging sexual harassment and discrimination by co-workers and supervisors. The 32 women claim they have been treated unfairly regarding promotions, training, and job assignments. The women do not seek punitive damages, but want the discrimination to stop and want to see changes in how the mint handles complaints. The Denver Mint is operated by the U. S. Treasury Department.

Source: Associated Press, June 11, 2003

 

Limits on Workplace Expression 

When Matthew Dixon’s employer told him that the two Confederate flag decals he placed on his worksite toolbox violated the company’s harassment policy, and must be removed, Mr. Dixon countered by claiming his First Amendment right to freedom of expression was being violated. He refused to remove the decals and was fired as a result. He sued, and subsequently lost, in both district court and federal appeals court. The judges in both cases ruled that a person’s constitutional right to display the Confederate flag does not extend to the workplace. 

Dixon, an active member of the Sons of Confederate Veterans, said that the display of the flag was a political statement in response to the controversy over whether the Confederate flag should be flown over the South Carolina state capitol dome. After a complaint by one of Dixon’s co-workers, his employer, Coburg Dairy, tried to mediate a compromise. They offered to buy Dixon a new toolbox for work and to let him take the one with the flags on it for use at home. Dixon responded to these efforts by saying that his heritage was "not for sale," and the company dismissed him as a result. 

Dixon’s lawsuit failed for several reasons. The First Amendment was written to protect citizens from government or state interference in their right to free speech. This case concerned a private employer, and so these same protections do not apply. Dixon further cited South Carolina law, which states that it is unlawful for a person to discharge a citizen from employment because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and the laws of the United States. 

Dixon had to prove that his employer’s insistence on the removal of the flag decals was a violation of a right guaranteed to every citizen. He was unable to do this. Dixon was not fired for his political opinions, the court ruled, but for his behavior in support of his opinions. In fact, another employee also put a Confederate flag decal on his property at work, and stated as his reasons those very similar to Dixon’s. But when this employee was told to remove the decal, he did, and continued his employment without further repercussions. 

The First Amendment right to freedom of expression is not unlimited in the workplace. In fact, case law clearly upholds an employer’s right to limit expression, especially if that expression could violate other statutes, such as federal guidelines on workplace harassment. Had Mr. Dixon gone to a Confederate flag rally at the state capitol on his day off, and been fired as a result, he would have had a substantial First Amendment case. He did not have the same constitutional protections while on his employer’s time and property. 

The right to freedom of expression is not unconditional. An employer may not be able to dictate what you think in the workplace, but it can clearly control what you do. 

Source: Dixon v. Coburg Dairy Inc. 4th Circuit Court of Appeals, 02-1266 

© Linda F. Willing, 2003