By Jo Potuto
Craig James was fired by Fox Sports Southwest. He says it happened when Fox Sports learned of comments he made during a political campaign —“People choose to be gay…. I think it’s a choice. I do. Same-sex marriage, if someone chooses to do that, that’s done. And God’s going to judge each one of us in this room for our actions. And in that case right there, they’re going to have to answer to the Lord for their actions.”
James says he was fired for his religious beliefs. He can’t claim a first amendment violation, because Fox Sports Southwest is not a government actor. He points, instead, to Title VII of the Civil Rights Act. Fox Sports Southwest officially says that James was fired because he is a “polarizing figure” in college sports and the hire was not “properly vetted.” (Earlier, a Fox Sports spokesman said James’ comments led to the firing—“he couldn’t say those things here.”)
Let’s say Craig James is right, and he was fired specifically because of what he said about gays. What are his rights? The likely answer is, “None.”
Assuming James was an employee of Fox Sports Southwest—a precondition for Title VII to apply—James needs to show that Fox Sports discriminated against him because of his religion. In other words, James has to prove that Fox Sports would have kept him on if only he hadn’t mentioned God and the Bible when he said being gay was a choice and that he opposed gay marriage. (For the record, James also was reported as saying, “”I think right now in this country, our moral fiber is sliding down a slope that is going to be hard to stop if we don’t stand up with leaders who don’t go ride in gay parades,” he said. “I can assure you I will never ride in a gay parade.”)
James will have a difficult time showing religious discrimination under Title VII. First, because, on the face of it, it is at least plausible that he was fired for what he said about gays and gay marriage, not because his position derived from his religious beliefs. Second, because in any event Title VII typically does not cover religious speech. Instead, it covers religious practices and their accommodation in the workplace (Orthodox Jew’s entitlement to wear a yarmulke at work, for example). And even with religious practices, accommodation is required only if it can be achieved with no more than a minimal burden on an employer, or on other employees.
James was hired by Fox Sports Southwest to be on-air talent. Fox Sports Southwest could have decided that James’ comments will affect viewership and his ability effectively to do his job. If that is so, then keeping James on the air seems to be more than a minimal employment burden. Even if Fox Sports Southwest let James go because of his religious belief, therefore, letting him go likely would not violate Title VII.
Next consider James’ right to free speech independent of his free exercise of religion claim. That one also appears to be a loser —unless protection of speech is covered in a union contract, contract of employment, or in some state statute. Why? Because Title VII generally does not protect employees from being fired for what they say.
We might prefer that employers be tolerant of employee speech, especially speech outside the office. But they don’t have to be. Most of the time, employers want to stay out of controversies of any kind and just focus on business. Should they choose to take sides in a public debate, however, the law permits them to keep on payroll only those employees who toe the company line in their public statements. In other words, an employer can fire Craig James for saying he opposes gay marriage and yet retain a broadcaster who states his support.
It is not just private employers who have such latitude, moreover. For government employee speech, the courts balance the right of citizens to speak on matters of public concern with a government employer’s right to an efficient workplace. For speech not of public concern, the government virtually can fire at will.
Lots of things may enter into an employer’s decision to fire an employee for what he says. What prompted the comments? How high profile is the employee? Were the comments made at work, or not? Did the employee purport to speak for his employer? How were the comments phrased —as part of civil discourse, as dispassionate scholarship, or as a personally abusive epithet?
We are a nation of red and blue states and red and blue thinkers. We should be able to disagree with each other even about hot button issues and yet still be respectful of each other and engage with each other. We should be open enough to acknowledge the possibility that someone can be ill-informed, wrongheaded or downright silly without being mean-spirited, evil, or a bigot.
But employers are in the business of making a profit, not advancing the body politic. They don’t have to care why an employee said what he did, or how he said it. Just that he did.
Jo Potuto is the Richard H. Larson Professor of Constitutional Law at the University of Nebraska and its Faculty Athletic Representative. She blogs at Potuto’s Points of Sports & Law. You can follow her on twitter —@PtsOfSports_Law.
