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Chapter 8: Background Investigations of Applicants for Employment | 301
does not address a matter of public concern, the communication is not entitled to First Amendment protection and the employer is free to reject the applicant on the basis of what he or she has said.95 Sometimes employers find photographs of the applicant engaged in questionable behavior or in suggestive poses96 or complaints about the applicant’s current job, supervisor, or coworkers.97 These are not matters of public concern but are purely private in nature and may be the basis for rejecting an application for employment.
8.5.1.5 Balancing the Interests of the Public Employer against the Applicant’s Right to Free Speech
As discussed above, if the applicant’s speech does address a matter of public concern—such as unlawful discrimination—the question of whether or not it may form the basis of a rejection is determined by application of what
Cir. 1984)); Lewis v. Blackburn, 734 F.2d 1000, 1004–05 (4th Cir. 1984); Love-Lane v. Martin, 355 F.3d 766 (4th Cir. 2004) (allegedly discriminatory practices by school board are always a matter of public concern).
95. Although most First Amendment public employment cases arise in circumstances where a public employee has been terminated on the basis of his or her speech, the U.S. Supreme Court has made clear that the same protections and analysis apply in cases involving a failure to hire an applicant because of something that the applicant said or wrote. See Perry, 408 U.S. at 597–98 (1972) (First Amendment prohibited state college from not renewing a professor based on his public criticisms of the college administration). See also Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990) (hiring based on party affiliation and support violates First Amendment rights to free speech and association); Hubbard v. Adm’r, Envtl. Prot. Agency, 735 F. Supp. 435, 437–38 (D.D.C. 1990) (evidence demonstrated that applicant was rejected for exercise of First Amendment rights).
96. See City of San Diego, Cal. v. Roe, 543 U.S. 77, 83–84 (2004) (police officer who had been terminated for offering sexually explicit videos—featuring him in a generic “police” uniform—for sale online was not terminated for speech on a matter of public concern and his termination was not in violation of the First Amendment). See also Marshall v. Mayor and Alderman of City of Savannah, Ga., 2010 WL 537852 (11th Cir. 2010) (not for publication in the Federal Reporter) (plaintiff was terminated from her position as a city firefighter after posting pictures of herself with the fire and rescue squad on the same page as pictures showing her bare-shouldered and with a bare backside. The district court found that this speech was not entitled to First Amendment protection).
97. See Connick v. Myers, 461 U.S. 138 (1983); Hughes, 913 F. Supp. at 428 (personal grievances concerning working conditions do not qualify as matters of public concern).
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| Title | Recruitment and selection law for local government employers - Page 317 |
| Full Text | Chapter 8: Background Investigations of Applicants for Employment | 301 does not address a matter of public concern, the communication is not entitled to First Amendment protection and the employer is free to reject the applicant on the basis of what he or she has said.95 Sometimes employers find photographs of the applicant engaged in questionable behavior or in suggestive poses96 or complaints about the applicant’s current job, supervisor, or coworkers.97 These are not matters of public concern but are purely private in nature and may be the basis for rejecting an application for employment. 8.5.1.5 Balancing the Interests of the Public Employer against the Applicant’s Right to Free Speech As discussed above, if the applicant’s speech does address a matter of public concern—such as unlawful discrimination—the question of whether or not it may form the basis of a rejection is determined by application of what Cir. 1984)); Lewis v. Blackburn, 734 F.2d 1000, 1004–05 (4th Cir. 1984); Love-Lane v. Martin, 355 F.3d 766 (4th Cir. 2004) (allegedly discriminatory practices by school board are always a matter of public concern). 95. Although most First Amendment public employment cases arise in circumstances where a public employee has been terminated on the basis of his or her speech, the U.S. Supreme Court has made clear that the same protections and analysis apply in cases involving a failure to hire an applicant because of something that the applicant said or wrote. See Perry, 408 U.S. at 597–98 (1972) (First Amendment prohibited state college from not renewing a professor based on his public criticisms of the college administration). See also Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990) (hiring based on party affiliation and support violates First Amendment rights to free speech and association); Hubbard v. Adm’r, Envtl. Prot. Agency, 735 F. Supp. 435, 437–38 (D.D.C. 1990) (evidence demonstrated that applicant was rejected for exercise of First Amendment rights). 96. See City of San Diego, Cal. v. Roe, 543 U.S. 77, 83–84 (2004) (police officer who had been terminated for offering sexually explicit videos—featuring him in a generic “police” uniform—for sale online was not terminated for speech on a matter of public concern and his termination was not in violation of the First Amendment). See also Marshall v. Mayor and Alderman of City of Savannah, Ga., 2010 WL 537852 (11th Cir. 2010) (not for publication in the Federal Reporter) (plaintiff was terminated from her position as a city firefighter after posting pictures of herself with the fire and rescue squad on the same page as pictures showing her bare-shouldered and with a bare backside. The district court found that this speech was not entitled to First Amendment protection). 97. See Connick v. Myers, 461 U.S. 138 (1983); Hughes, 913 F. Supp. at 428 (personal grievances concerning working conditions do not qualify as matters of public concern). |
