Monday, November 23, 2009

First Amendment Unemployment Compensation: Sherbert v. Verner

Tonight's entry marks the first in a planned series of posts on first amendment protections for private employees through unemployment compensation law. The series is inspired by a recent post on The Volokh Conspiracy. In short, a November 16, 2009 Magistrate Judge's report (Griffin v. N.H. Dept. of Employment Security (.pdf)) found that the First Amendment protects, in an unemployment compensation decision, an employee terminated by a private employer for his speech.


Generally, private employers can not violate the First Amendment. States, however, can violate the First Amendment (as a side point, the First Amendment applies to the States through the Fourteenth Amendment). We deal here with the confluence of the two: state unemployment compensation benefits decisions resulting from the termination of private employment.

First, let's back up a little bit. Prof. Volokh says, "If you want to offer legal analysis about the case, you should probably make sure you have read Sherbert v. Verner [374 U.S. 398 (1963)]." Don't mind if I do!

The case involves a Seventh-day Adventist terminated by her South Carolina private employer because she refused to work on Saturdays due to her religious beliefs. Remember that the First Amendment does not generally apply to private employers. Note that this Supreme Court opinion was handed down in 1963 so don't even think about Title VII analysis. So far, everything seems lawful.

She was then unable to find employment because she was unavailable to work on Saturdays... so she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act. Alarm bells! We have our first state action, the UC Act. The state law required that the claimant be "able to work and . . . available for work." The claimant was therefore denied unemployment compensation benefits, and that's where the Supreme Court finds a Constitutional problem.

The Court noted:
"Here, not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable."
The Supreme Court held the denial of unemployment compensation benefits imposed an unconstitutional burden on the free exercise of religion.

The reason for the claimant's termination was her refusal to work on Saturdays for religious reasons... but this was not the Court's basis for finding a Constitutional infringement. Rather, the Court took exception to the imposition of a state law requirement, not the private employer's requirement, that the claimant be available on Saturdays.

To me, this distinction is crucial. But as we shall see in future posts, the courts have not necessarily shared this view. How do we go from applying First Amendment protections to claimants regarding state law requirements in Sherbert in 1963... to applying the same analysis to the private employer's reason for termination in Griffin in 2009? Also, how do we go from the Free Exercise Clause to the Free Speech Clause? Answers forthcoming.