Just last month the Supreme Court held that discrimination on the basis of sexual orientation or transgender status violates Title VII of the 1964 Civil Rights Act. Reflecting on the historic nature of that decision I recalled some advice I’ve given over the years. Today I will tell you a story about a situation in which my advice was right then, and right now. Later this week I’ll tell a different story.
It must have been sometime in the 1990s. It must have been June—Pride Month. Monday morning, first cup of coffee and there is Superintendent Goodguy on the phone. I mean no sarcasm in that made up name—this superintendent, now long retired, truly was a good guy and one of my favorites. The supe told me that he had been in Austin over the weekend, and just happened to see the Gay Pride Parade going down Congress Avenue. To his surprise, he saw one of his teachers marching, holding a sign supporting gay rights. There followed this exchange:
SUPE: What should I do about it?
LAW DAWG: Nothing
SUPE: Should I tell the board?
LAW DAWG: Not a good idea
SUPE: I was pretty sure that would be your advice.
When we got off the phone I thought about a bit. I just advised the superintendent that it would not be a good idea to pass this information along. Was that the right advice? Keep in mind that I don’t represent the superintendent, or any of the individual board members. Our firm represents the school district, which acts through the board and the superintendent. Was I right to advise that it would not be a good idea to tell the board what the superintendent saw?
Absolutely. And it has nothing to do with sexual orientation. It has to do with free speech. The superintendent assumed that the man was gay. Probably so, but we did not know that for sure. Moreover, it was irrelevant. What was relevant and what we knew for sure was that the man was an American citizen exercising his right of free speech on a Saturday, an hour away from his hometown. I asked the superintendent if the man was a good teacher. “He’s an excellent teacher,” he replied.
If the superintendent passed this information along to the board, it would be putting into the heads of the board members information that could not form the basis of an adverse personnel action. Personnel actions, whether positive or negative, should always be motivated by job-related, non-discriminatory, non-retaliatory motives. What this teacher chose to do with his free time on a Saturday was not the business of the superintendent or the board. And that goes double for activity of the teacher that is constitutionally protected. Nothing good could come from that information being passed along to others, especially those who would be making decisions about the teacher’s future employment.
DAWG BONE: SOMETIMES SILENCE IS THE BEST RESPONSE.
Tomorrow: Toolbox Tuesday!