You’re a Grand Old Flag – A (Very) Brief History in Employment Law

With Independence Day nearly upon us (and with many offices on skeleton crews this week), I thought I would take a very brief look back at a case that has particular relevance to the Grand Old Flag and displays of patriotism in the workplace.

If you’ve never read about Cotto v. United Technologies Corp., you should. It’s a long-forgotten Connecticut Supreme Court case from 1999 that is a cornerstone opinion in the area of free speech in the private workplace.

The basic facts are as follows:

• The plaintiff was employed on a full-time basis by the defendant for approximately twelve years.


• In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations.


• The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag.


• After a suspension, he was fired by his employer on or about May 16, 1992.

Legal? Well, the Connecticut Supreme Court had two things to say on this. First, the Court held that the employee could raise a claim under a state law that an employee’s free speech claims were being violated.

But that’s only part of the decision. In the other half of the decision, the Court was asked to decide whether the employee actually had a free speech claim.

The Court reminds us first that not everything is a federal or even state case. “As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question.”

And then the court reminds us that the Complaint was missing a few essential aspects to rise to that level.

Significantly, the plaintiff did not allege that:

• he was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto;


• he was directed to affix the flag to his person or to his private property;  or


• he was indirectly directed to associate himself with the symbolism of the flag because the location of his workstation was such that members of the public, or his fellow employees, reasonably could have attributed that symbolism to him personally.

Instead, the claim rested on the requirement for the Plaintiff to affix the flag to the workstation. The Court saw no meaningful difference to that act, versus an employer who did it for the employee — which would not violate the First Amendment.

A direction to the plaintiff to affix a flag to his workstation did not require him either to manifest or to clarify his personal political beliefs.

Because a flag was to be affixed to  each workstation, and because the plaintiff’s workstation was not exposed to public scrutiny, he was not required to assume the risk that others might attribute to him any political beliefs about the flag that he did not share.

In other words, the direction to the plaintiff, as a matter of law, was not a “coercion of belief.”

Hmmm.

Now, suppose on July 4th, all employees are directed to recite and stand for the Pledge of Allegiance when it is played in the employer’s stores.  And suppose that an employee was fired for refusing to do so.

Given the language in this case, could the employee allege that he or she “was directed to manifest his [or her] patriotism by saluting the flag or otherwise affirming his [or her] allegiance thereto” — a fact that was missing in the Cotto case?

That obviously is an unanswered question, but those who are unfamiliar with our historical precedent would be wise to understand it.

As for my plans, I think I’ll find my favorite Independence Day movie on Netflix (or Amazon Prime, or somewhere).  

Happy Independence Day to all.

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