Speech for the Anti-Woke Workplace

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Elizabeth Sepper

A new form of employer speech rights is burgeoning in the federal courts. Employers press for an expressive associational right to exclude unwanted workers. Although the Supreme Court has said that “expressive association is not reserved for advocacy groups,” in practice the right has extended to organizations that bring people together to speak—for example, to amplify a message, pursue civic goals, or unite coreligionists. The employment relationship had not qualified. But that is quickly changing.

A number of federal court decisions now hold that expressive association shields employers from antidiscrimination law. These cases—described in brief below—elide important distinctions between work and voluntary membership groups. They highlight broader trends for the future of employer speech. First, discriminatory conduct is becoming speech, and antidiscrimination law unconstitutional regulation of expression. Second, the cloak of religion has enabled courts to push speech doctrines toward deregulatory ends. The presence of a religious party makes these moves more palatable to some cross-section of the judiciary and the public. It suggests that the pro-business tilt of First Amendment doctrine may be overtaken by a pro-religion radicalism even more partial in its application.

The Rise of Employer Expressive Association

In the past five years, federal courts have decided thirteen suits involving employer expressive association. They involve diverse litigants—religiously affiliated schools and universities, nonprofits, social service providers, for-profit businesses, and media companies. In just under half, employers have succeeded—taking the right to expressive association far beyond its foundations in the membership of voluntary groups.

Consider Slattery v. Hochul from the Second Circuit. There, a crisis pregnancy center chain challenged New York’s “boss bill” that prohibits employment discrimination based on an individual’s pregnancy or other reproductive decisions. It argued that the First Amendment grants it a right to restrict employment to individuals whose reproductive and sexual decisions align with employer values.

The Second Circuit agreed. Applying the three-prong test set by the Supreme Court in Boy Scouts of America v. Dale, it first held that the employer qualified as an expressive association due to its “expressive activity” of “shar[ing] their pro-life message with the world.” What the court didn’t do is provide any explanation for finding expressive association in employer-employee relations. It said simply, “[c]ompelled hiring, like compelled membership, may be a way in which a government mandate can affect in a significant way a group’s ability to advocate public or private viewpoints.” The court then deferred to the employer as to the burden on its ability to express its views. It accepted both that every employee had to be “a reliable advocate” of the employer’s message and that the mere presence of a woman who has had an abortion significantly burdens her employer’s anti-abortion speech. Last, the court held that the interests of the employer outweighed the state interest. Employees, it said, can find other jobs. But the employer cannot continue to speak if it must refrain from discrimination based on reproductive choices.

A number of district courts have proved receptive to these claims. Catholic educational systems with more than a hundred schools have been granted an unqualified constitutional right against a city ordinance similarly barring discrimination based on reproductive healthcare. Bear Creek Bible Church v. EEOC went so far as to grant expressive association protection to a for-profit management company that refuses to employ LGBTQ people or tolerate gender non-conforming conduct. These decisions transform the labor contract into an association expressive of (employer) values. The analysis, moreover, tends to apply to all employees, however menial their role.

Media companies have begun to raise similar defenses against employment claims. Sued by a white, heterosexual man for reverse race and sex discrimination, CBS moved to dismiss. It contended that the First Amendment shields it, because an entity engaged in expression “has the right to select employees whose work affects that expression.” Disney also invoked expressive association in defense of firing actress Gina Carano for her inflammatory social media posts. Here, courts rejected the employers’ motions to dismiss, and litigation proceeds.

Such arguments from employers are proliferating. In Colorado, a school-employer has argued for a right to exclude employees who do not share their “Christian worldview.” In litigation against the Pregnant Workers’ Fairness Act, large Catholic social service employers say that employer associational freedom is under threat from a rule that employers refrain from discrimination related to abortion.

The Absence of Expressive Association at Work

Employers, however, are not akin to voluntary membership groups (James D. Nelson, Charlotte Garden, and I make these arguments and more in a new article). First, paid labor distributes material benefits necessary for survival, whereas volunteers do not expect compensation and, therefore, retain independence from the organization for means of survival. Second, members of membership organizations maintain high degrees of freedom and equality, even as managers of firms control employees. Third, membership organizations gather individuals based on common values, characteristics, or concerns. Employment instead brings together diverse populations.

These three factors—coercion, control, and diversity—should shape courts’ approach to employer claims to expressive association. As a general principle, the employment relationship is not meaningfully expressive (there may be exceptions but they are just that). Under the employer prerogative of control, employees and management do not “join together to speak” as members do in voluntary associations. Instead, workers are ordered to voice the employer’s message. Many others do not speak at all. And because employees are coerced into work (at least in the sense of financial need), their decision to take a job doesn’t say that they individually endorse their employer’s positions.

In those rare cases where employer-employee relations constitute expressive association, the inclusion of any particular employee usually won’t amount to a significant burden on organizational speech. Day-to-day (or even minute-to-minute) control of work means that employers can micromanage what employees do and say while doing their jobs. Control also helps police a border between speech attributable to an employer and speech belonging to individuals. (Of course, mileage will vary depending on the individual’s organizational role as leader, policymaker, etc). The expectation of workplace diversity in turn means employees aren’t expected to match ideologies, personal identities, family configurations, and religious views.

Finally, rejection of employer claims to expressive association is generally justified by their role in the economy and relationship to workers. And there’s reason to think separating work from personal life is better for associational freedom writ large. It leaves people free to form genuine voluntary associations to pursue their own values away from their bosses.

Courts can and should justify the rejection of expressive association in employment. But increasingly they do not. And where they do, the results may fall into a familiar institutional First Amendment pattern—favoring conservative and Christian entities over others.

First Amendment Rights to Discriminate

These decisions point to ongoing shifts in First Amendment. First, we see a troubling tendency to paint discriminatory conduct as speech. Typical is New Hope Family Services v. Poole, where the Second Circuit confronted claims from a Christian foster and adoption agency that New York’s antidiscrimination law violated its rights to speech and expressive association. The core of the agency’s objection was to “[i]ncluding unmarried or same- sex couples” in its adoption and foster programs—a regulation of its conduct. But the Second Circuit found plausible that antidiscrimination law “is necessarily compelling New Hope to engage in the speech required for that conduct—speech with which New Hope does not agree.” The free speech analysis then worked in tandem with expressive association. The articulation of a desire to discriminate transformed a workplace into an expressive association eligible for constitutional protection of its hiring.

The cases I discuss here pre-date 303 Creative LLC v. Elenis but they may predict its future direction. In 303 Creative, the Supreme Court insisted that the application of a public accommodations law to a website designer regulated “pure speech.” But it also seemed to accept that compliance with antidiscrimination law inevitably burdens the message of those who would rather discriminate—a notion reflected in the employer association cases. 303 Creative, moreover, describes antidiscrimination law as aiming to eliminate views and prescribe what shall be offensive. The act of discrimination becomes speech, and its regulation intentional targeting of disfavored speech.

Second, employer expressive association cases reveal the increasing irrelevance of institutional context for First Amendment doctrine. The failure to distinguish work from voluntary groups is consistent with the Court’s erasure of lines between public and private, secular and religious, and non-profit and for-profit in free speech and free exercise cases. Consider, for example, that in 303 Creative LLC v. Elenis, the majority chided the dissent for thinking that constitutional precedent endorsed limits on First Amendment protection for commercial or for-profit entities.

These cases meld doctrines once separated into speech, association, and religion. In Our Lady’s Inn v. City of St. Louis, for example, the district court mixed—or perhaps combined—the plaintiffs’ association and free exercise claims. Its opinion reads: “Applying the principles of Dale, the Court finds that Our Lady’s Inn is an expressive association entitled to protection under the free-exercise clause.”¹⁷⁶ In Darren Patterson Christian Academy v. Roy, the court’s analysis of expressive association came in a section entitled “religion clause claims.”¹⁷⁷ Both courts authorized religious employers to discriminate against not only ministers, but all employees.

Third and finally, the religious identity of litigants has enabled courts to advance speech doctrines toward deregulatory ends. In her recent work, Kate Redburn argues that speech became the preferred “constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation”; “Christian conservative cause lawyers were not dupes of their libertarian peers” but rather employed speech toward goals of religion. The growth of expressive association claims suggests that Christian conservative litigation shops—primarily, the Alliance Defending Freedom—are using speech in similar ways for religious employers.

Courts and litigants are able to toggle between religion, speech, and association so as to favor right-wing conservative actors. Consider that upon remand from the Second Circuit in New Hope, the district court avoided the association claim by concluding that antidiscrimination law unconstitutionally compelled speech from the adoption agency—having to place children with gay or unmarried couples would require some speech. Where entire Catholic archdioceses argued that all employees fall into their expressive association, courts of appeals stretched the ministerial exception beyond any defensible bounds to side with religious litigants and avoid Supreme Court review. The upshot in these cases is the same. The employer wins—so long as it asserts religion paired with speech.

And so, while speech and association doctrines are meant to apply impartially to secular and religious, woke and anti-woke alike, they seem unlikely to do so. Courts instead may defer to conservative Christian employers across First Amendment contexts. The “pro-business” Supreme Court may be eclipsed by the “pro-religion” Court.

[This piece draws in large measure on Expressive Association at Work, Mich. L. Rev. (forthcoming 2026) (with James D. Nelson and Charlotte Garden) and The Return of Boy Scouts of America v. Dale, 68 St. Louis U. L.J. 803 (2024).]

Elizabeth Sepper is Professor, University of Texas at Austin School of Law. You can reach her by e-mail at elizabeth.sepper@law.utexas.edu.