Favorite Firing: Discharged for Writing a Religious Book

As I’ve written before, protecting religious freedom deserves special recognition in American society. (See here and here.) The First Amendment begins “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .” Thus, religious freedom was the first right protected by the Bill of Rights. The Constitution’s protection of religion was extended to all levels of government in the Fourteenth Amendment.

I’ve been following the case of the former Atlanta Fire Chief who was fired after he published a book about his religious beliefs. See Cochran v. City of Atlanta and Mayor Kasim Reed, Case No, 1:15-CV-0477-LMM (N.D. Ga. December 20, 2017).

THE FACTS: Fire Chief Kelvin Cochran of Atlanta wrote a book entitled Who Told You That You Were Naked? Most of the book explained his thoughts on helping men become better husbands and fathers. But a few pages discussed his fundamentalist Christian beliefs related to homosexuality and sex outside of marriage. His opinions were certainly politically incorrect and even repugnant to much of American society today. As the District Court later stated, the book contained

“passages identifying those who engage in homosexual and extramarital sex as ‘naked’—or ‘wicked,’ ‘un-Godly’ sinners—whose deaths will be
celebrated.”

Chief Cochran self-published his book and gave copies to a few of his subordinates in the Atlanta Fire Department. One employee took the book to a union official, who took it to the city’s Human Resources Department. Human Resources launched an investigation to determine if Chief Cochran’s views as expressed in the book affected his departmental leadership.

Pending the investigation, Chief Cochran was suspended for 30 days without pay and told that he would need to attend sensitivity training. He says he was told he could not conduct media interviews during his suspension, but the city said he was told not to comment publicly at all. As outlined in the District Court’s opinion, Chief Cochran and members of the Georgia Baptist Convention and others launched a public campaign to get the Chief reinstated.

After his suspension and the city’s investigation, Chief Cochran was fired in January 2015.

There was no indication that Chief Cochran had any performance difficulties in his role as Fire Chief, nor was there any evidence that Chief Cochran had treated any employee or any member of the public with any disrespect or discrimination. However, the city feared that an employee might later allege discrimination and use Cochran’s book as evidence against the city.

After his discharge, Chief Cochran filed a federal lawsuit against the City of Atlanta and its mayor, alleging violation of his First Amendment free speech rights, retaliation in violation of his freedom of association right, unlawful prior restraint of speech in violation of the First Amendment, violation of his First Amendment right to the free exercise of religion, and violation of his Fourteenth Amendment right to procedural due process.

THE MORAL: Although Chief Cochran’s religious book was at the center of the controversy, the parties disagreed on how they stated its role in his discharge. As the District Court put it:

“Plaintiff contends that he was fired because of his religious speech—which is grounded in conservative Christian principles—in violation of the Constitution, while Defendants contend that he was fired because he did not comply with the City’s pre-clearance rules for outside employment [including publication of the book] and for facilitating a massive public relations campaign against the Mayor and the City. Defendants also contend that Plaintiff’s speech made the City potentially vulnerable to employment discrimination claims and substantial disruption.”

The case came before the District Court on cross-motions for summary judgment. The District Court granted each motion in part.

The District Court went through a lengthy analysis balancing the parties’ interests as required by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968). Quoting Pickering, the District Court described the standard:

“‘To prevail under this analysis, an employee must show that: (1) the speech involved a matter of public concern; (2) the employee’s free speech interests outweighed the employer’s interest in effective and efficient fulfillment of its responsibilities; and (3) the speech played a substantial part in the adverse employment action.’ Id. If the employee establishes the first three elements, the burden then shifts to the government to prove by a preponderance of the evidence it would have reached the same decision absent the protected speech.”

Using this standard, the District Court found in the city’s favor and against Chief Cochran on several of his claims. The claims on which the city prevailed were Chief Cochran’s First Amendment free speech rights, freedom of association rights, and his claim of viewpoint discrimination. Because Chief Cochran was a supervisor, dissemination of his book in the workplace made it “not unreasonable for the city to fear” his views might cause “public erosion of trust in the fire department.”

The Court found

“In balancing all of the Pickering factors, Plaintiff’s speech caused such an actual and possible disruption that it does not warrant First Amendment
protection in the workplace . . . ”

And because Chief Cochran was an at will employee, the Court also found that his claim that he had been denied due process was not viable— he was subject to dismissal with or without cause.

To be frank, I think the District Court erred in giving so much credence to the disruption in the workplace, much of which was caused by the investigation itself. Also, the Court cited the social media campaign by plaintiff’s allies as evidence of disruption, but the plaintiff should not be held at fault because his situation was controversial in the city of Atlanta.

Although the District Court ruled in part for the city, the opinion also favored Chief Cochran in part, granting summary judgment for Chief Cochran on his prior restraint claim. The Court found that the city’s pre-clearance rules were an unlawful prior restraint and imposed “unbridled discretion” on city employees. Therefore, the Court held that the city’s decision to fire Chief Cochran for disseminating his book without approval “does not pass constitutional muster.” The city had not provided objective standards, and therefore the city could not require its employees to obtain permission before expressing their religious views.

As a result of winning on the prior restraint and unbridled discretion claims, Chief Cochran was eligible to receive his back pay and attorneys’ fees. In October 2018, several months after the District Court’s ruling, the City of Atlanta and Chief Cochran settled the case. In the settlement, Chief Cochran received $1.2 million.

This would have been a cleaner case had the Court recognized Chief Cochran’s religious expression rights more completely, but in the end, this was an expensive lesson for the city. And a good outcome for government employees who choose to express their religious beliefs, no matter how unpopular those beliefs might be.

Public employers should be careful when they restrict the speech and religious expressions of employees. Government employees should not face the chilling effect of possible discharge for expressing their religious opinions—whether in books, on social media, or in person. They should be free to state beliefs on their own time without fear of losing their jobs.

Under the Pickering framework, public employees, particularly those in supervisory positions, need to take care not to interfere with effective and efficient fulfillment of their agency’s responsibilities. But they should feel free to state their beliefs without fear of retribution.

What do you think about the protection of religious expression in the workplace?