Saturday, December 5, 2009

First Amendment Unemployment Compensation: Hobbie

This entry marks Part II in my series on the evolution of First Amendment protections afforded private employees in the context of unemployment compensation benefits. In Part I, I covered Sherbert v. Verner, in which an employee was terminated for refusal to work on Saturdays for religious reasons. In that case, the Court held that a denial of unemployment compensation was unconstitutional.

I raised the point that it was unconstitutional because the STATE required that the employee be available to work on Saturdays as part of its UC law. My (over)emphasis on the word state is a result of the established law that state action is necessary for a Constitutional violation of the Fourteenth Amendment (which incorporates First Amendment rights among others). This post details the Supreme Court's apparent abandonment of the state action requirement in more recent First Amendment UC cases.

In Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987), the Supreme Court analyzed a case remarkably similar to Sherbert. An employee, in this case a jewelry retailer, refused to work her scheduled Saturday shifts because of her conversion to the Seventh-day Adventist Church. The Court does turn to the State law:
"Under Florida law, unemployment compensation benefits are available to persons who become 'unemployed through no fault of their own.' Fla.Stat. § 443.021 (1985)."
The employee was terminated for refusing to work shifts scheduled by her private employer.

While the Hobbie opinion is discussing a state law, it is a different provision from that in Sherbert. Sherbert dealt with a provision in which the state required that employees be available to work, under the circumstances on Saturday. In Hobbie, we switch from a claimant's availability post-termination to the moment of termination itself. Note that post-termination availability is a state requirement whereas working your scheduled shift is a private employer's requirement.

The Supreme Court assures us that it sees "no meaningful distinction" between Sherbert and Hobbie and finds the denial of benefits unconstitutional. With all due respect, I think there's a very meaningful distinction. How does someone "become unemployed" (the statutory provision in question in Hobbie) while holding a job with a private employer? The answer in Hobbie: She was terminated by her PRIVATE employer! OK, that's the last time I will use all caps, bold, and italics... but my point should be clear by now: there's a distinction in Constitutional law between state action and private action.

Justice Stevens has an extremely short concurring opinion in which he states:
"In such an instance, granting unemployment benefits is necessary to protect religious observers against unequal treatment."
The situation arose from (and the denial of benefits was based on) a private employer terminating a private employee. I'd argue that applying the First Amendment to the termination is actually not necessary to protect against unequal treatment based on religion. In fact, numerous other protections already exist to protect private employees from unequal treatment by their private employers based on religion, most notably Title VII.

In Hobbie, it appears the Supreme Court deemed it appropriate to demand that a private employer's reason for termination pass Constitutional muster before denying a terminated employee his or her unemployment compensation. In future posts in this series I will examine such issues as: applying free speech to unemployment compensation; a legal argument employing case law drawing the state/private distinction on which I rely; and the extraordinary implications of applying first amendment protections to unemployment compensation (hint: it goes way past the First Amendment).

Sidenote: There's another Supreme Court case that could be seen as a bridge between Sherbert and Hobbie that readers may find helpful: Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981).