Michael P. Maslanka

  • Michael P. Maslanka
    Michael P. Maslanka is managing partner of the Dallas office of Constangy, Brooks & Smith. His e-mail address is mmaslanka@constangy.com. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the “Work Matters” column for Texas Lawyer’s In-House Texas publication and records labor and employment podcasts that can be found at www.texaslawyer.com.

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May 03, 2013

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I suspect public policy comes into it. A manager who refuses to hire women because they should be barefoot and pregnant violates the public policy of equality, just as refusing to hire a woman who wears a hijab violates the public policy of equality. Discussions on the freedom of speech always wind up with someone citing Oliver Wendell Holmes -- shouting "fire" in a crowded theatre is not protected speech. Speech is not completely free. It can be regulated in time and place. Our society has decided that the workplace is not the place to espouse anti-egalitarian sentiments.

The first amendment says that the Government shall make no law infringing on freedom of speech. It says nothing about whether a private employer can make rules regarding what its employees can or cannot say in the workplace. The First Amendment only serves as a defense to an employer taking adverse action due to an employee's speech if the employer is a governmental entity and even then only certain speech is protected.

Years ago I had a male coworker comment that all women (petticoats) should be kept at home barefoot & pregnant. (It was okay then.)
I responded that 'I could out perform any man in the building including him any day of the week. I then proceeded to prove it. He later came to my workstation and apologized.
To this day I don't believe that type of comment is appropriate.

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