Expressive Association at Work

Elizabeth Sepper,* James D. Nelson,** Charlotte Garden† May, 2026

Do employers have constitutional rights of expressive association? Two decades ago, in Boy Scouts of America v. Dale, the Supreme Court held that a state law prohibiting discrimination based on sexual orientation could not be applied to a membership organization that wished to exclude a gay leader. Today, courts face a rising tide of claims from employers, who argue that Dale constitutionally insulates their hiring and firing decisions from antidiscrimination law. A narrow majority of courts have denied such claims, holding that Dale does not apply at work. Increasingly, however, courts are siding with these employers, eliding any distinction between membership organizations and workplaces. Across the board, courts have failed to provide a coherent justification for their decisions.

This Article makes the case that membership and employment diverge along both expressive and associational dimensions. Employment comes apart from membership in its distribution of material resources, reliance on coercive authority, and integration of a diverse polity. We trace these distinctions through work law and uncover their presence within First Amendment doctrine, sometimes openly stated, but often more subtly invoked. Put together, they support a presumption against extending the right of expressive association to the relationship between an employer and its employees.

Introduction

Brian Beneker, a heterosexual white man, worked at CBS Studios but never could break into the scriptwriter role to which he aspired. In 2024, he sued CBS for race and sex discrimination.¹ In its defense, CBS invoked Boy Scouts of America v. Dale.² In Dale, the Supreme Court famously held that the right of expressive association allowed the Scouts to discriminate in selecting members.³ CBS argued that the First Amendment should equally shield its employment decisions from antidiscrimination law.⁴ “Because CBS’s works are expressive,” it said, the company “has the right to select employees whose work affects that expression.”⁵

Lynn Starkey, a lesbian married to a woman, had been a guidance counselor at a Catholic school for twenty-one years when the school fired her.⁶ In response to Starkey’s discrimination complaint, the local archdiocese claimed freedom of association: “Just as political parties, parades, private clubs, and the Boy Scouts can exclude those who interfere with their message . . . the Archdiocese here can decline to renew the contract of a guidance counselor who rejects its core teachings on human sexuality.”⁷ In rejecting this argument, the trial court observed that the archdiocese read Dale “expansively,” as that case “did not arise from the employment context” and instead involved a plaintiff seeking “membership in a private organization.”⁸

Until 2018, no court had accepted an expressive associational right against employment discrimination law. Supreme Court doctrine safeguards a “right to associate for the purpose of speaking.”⁹ This right is distinct from the right to speak—all organizations enjoy free speech rights, but only some of them are expressive associations.¹⁰ To qualify, a group’s membership choices must shape its expression.¹¹ And even expressive associations have “no right to disregard” the law.¹² The Court has held that regulation must “significantly burden” a group’s ability to advocate its message¹³ for heightened scrutiny to apply.¹⁴ So long as people remain “free to associate to voice” their views, antidiscrimination law is constitutionally sound.¹⁵ Under this framework, civic organizations, churches, and political parties generally qualified as expressive associations and sometimes won constitutional exemption. Entities engaged in commerce usually did not.¹⁶

More expansive readings of expressive association, however, are becoming commonplace. In lawsuits across the country, employers—both secular and religious, for-profit and nonprofit, large and small—have asserted freedom-of-association rights.¹⁷ Multiple courts, including one court of appeals, have recently sided with employers and extended the right of expressive association to the workplace.¹⁸ Litigants and their supporters say, “[T]here is no employment exception to the First Amendment.”¹⁹

The emerging case law lacks anything resembling a coherent justification. In applying Dale to the workplace, courts have tended to ignore the differences between joining a voluntary group and taking a job. Some go so far as to imply that any organization becomes an expressive association simply by gathering two or more people and objecting to legal regulation.²⁰ At the same time, courts that cabin Dale to nonemployment matters have not offered principled reasons for doing so.²¹

In this Article, we make a comprehensive case that employment differs from membership in both its expressive and associational dimensions. We demonstrate that within its case law, the Supreme Court has drawn a dividing line between voluntary groups—potentially able to claim protection—and entities formed “for the primary purpose of financial gain”—presumptively excluded from protection.²² The Court has frequently cited paid labor, union membership, and customer service as settings where the First Amendment does not protect the “selective process of inclusion and exclusion.”²³ Across the board, it has placed employment at the far end of the spectrum, where associational interests fade away.²⁴ Even where membership organizations are involved, the closer they come to promoting access to the labor market, the more likely the Court is to permit their regulation. And on those rare occasions when it has held that the First Amendment overrides antidiscrimination law, the Court has insisted that “peculiar” applications of such laws were involved—in settings far from the heavily regulated environment of the workplace.²⁵

To make our case, we identify three central distinctions between membership and employment that explain and justify their disparate treatment under constitutional doctrine. First, paid labor distributes resources essential to economic survival, in contrast to the intangible benefits offered by membership organizations. The dependence of workers on wages and benefits can lead to coercion by employers. As a result, employment relations are more strictly regulated than associations characterized by voluntarism. Second, whereas members of civic associations cooperate on a more-or-less egalitarian basis, managers of firms hold special authority over workers. Their legal right to control employees sets the bounds of organizational responsibility and employee liberty. Third, workplaces unite people with varying identities and beliefs, whereas voluntary groups tend to form around their members’ shared values or characteristics. Work and civil society thus display differing visions of pluralism—the former oriented toward inclusion, the latter balkanized. We trace these three distinctions through work law and uncover their presence within First Amendment doctrine, sometimes openly stated, more often subtly invoked.

These dynamics, in turn, support a presumption that employment relationships do not express shared values. Managerial control and material benefit work in tandem to minimize any signal of affinity between boss and employee. Because most workers are financially dependent on their jobs, their choice to associate with an employer might mean nothing more than “I need this job to pay rent.” Likewise, an employer’s association with a worker communicates that “this person agreed to work for the wage I offered.” To be sure, some employees and employers share a commitment to a cause. And in some circumstances, the employment relationship may be expressive. One can safely assume, for example, that the Vice President of Policy and Legislative Affairs for the NAACP affirms his employer’s views on racial justice. But the legal relationship of employer-employee usually does not imply an endorsement of any specific viewpoint, including that the business is socially beneficial or the worker morally sound.

The long-standing regulation of work also affects onlookers’ perceptions of what, if anything, is expressed by employment. Indeed, the law protects some categories of employee expression against employer interference or control precisely because the parties are likely to have divergent views. Speech about unionization, for example, falls into this category. When a group of employees pickets their workplace to criticize working conditions, onlookers safely assume that the employer vehemently disagrees.

For those rare employment relationships that are expressive, employer control leaves the employer with plenty of ways to speak. While membership organizations have only one effective tool against outspoken dissenters—exclusion from the ranks—managers can wield close control due to the nature of employment. Employers need not permit workers to undermine the organization’s mission. They have tools to keep their workers “on message.”²⁶

And even where the burden on an expressive entity’s ability to speak becomes substantial, the distributional imperatives of workplace regulation should generally override that employer’s interests in expressive association. Granting employers a constitutional right to disregard antidiscrimination law would harm both individual workers and the wider labor market. By inviting employers to police and surveil employees’ off-duty conduct and speech, this approach would also threaten the liberty of individuals to build genuine associational relationships beyond the workplace and to live their own values free from their boss’s control.

This Article makes three contributions. First, we deliver a sustained analysis and critique of an emerging phenomenon—namely, employers asserting rights of expressive association. In the early 2000s, scholars generated much thoughtful scholarship about association after Dale.²⁷ But attention faded, and the recent surge in successful freedom-of-association claims is just starting to garner notice.²⁸ Second, we offer a new reading of Supreme Court cases in this area. Lower courts tend to rely on a limited set of opinions involving civic organizations and, consequently, have read the Court to be equivocal on employer rights of association. By expanding the lens to capture cases involving unions, group boycotts, and bar associations, we reveal that employment generally lies outside freedom of association’s bounds. Finally, we build on and enrich a burgeoning literature about constitutional values in the workplace.²⁹ To date, this literature has focused mostly on rights of speech and religion. But we show that scholars in this field must contend with the proliferation of novel claims to expressive association at work.

Our account is relevant to a range of high-stakes disputes that will unfold in the coming years. In ongoing litigation against the Pregnant Workers’ Fairness Act, for example, the U.S. Conference of Catholic Bishops, joined by a variety of Catholic social service employers, contends that employer associational freedom is under threat from a rule that employers refrain from discrimination related to abortion.³⁰ In New York City, 170 nonprofit organizations with over 200,000 workers are bringing an expressive association challenge to a requirement that city contractors either enter a “labor peace agreement” with their workers’ union or certify that no union has sought to represent workers.³¹ These sorts of arguments extend beyond nonprofit or religious employers. Media titans Disney and CBS are raising similar defenses to discrimination claims, saying that the First Amendment grants them a right to select employees whose work affects the company’s expressive products: TV shows and movies.³² Further afield still, Uber has challenged a city ordinance that would prevent the company from deactivating workers for reasons other than safety and efficiency. The ordinance, Uber claims, restricts its expression as “a leading voice on the sensitive matters upon which deactivations are often based” and forces its association with couriers it would otherwise “disassociate from.”³³ Each of these lawsuits seeks constitutional immunity from employment and labor regulation.

The Article proceeds in four parts. Part I sets the stage by first distilling the constitutional doctrine of expressive association and then revealing the emergence of an employer’s right to expressive association in court decisions involving both for-profit and nonprofit employers. Part II argues that the Supreme Court has long regarded employment as the site where expressive association’s value is at its nadir and the government may regulate. Part III makes our case for why the distinction between membership and employment is legally coherent and normatively sound; it identifies three critical differences between the two that justify their separation under First Amendment doctrine. Unlike voluntary membership, employment is characterized by coercion through material benefits, control within a hierarchical relationship, and pluralism among workers. Part IV offers a roadmap to navigate the recent proliferation of lawsuits involving media companies, for-profit firms, and religious employers.

I. Workplace Discrimination and Expressive Association

The constitutional doctrine of expressive association has long revolved around nonprofit membership organizations. Section I.A describes the basic analytical framework developed in Roberts v. United States Jaycees, Boy Scouts of America v. Dale, and Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR).³⁴ It draws out the constitutional values underlying the doctrine—democratic participation, personal development, and intergroup pluralism. Under this approach, lower courts had generally repudiated expressive association claims in commerce.³⁵ But recently, as Section I.B explains, courts have begun to extend constitutional protection to the employment relationship. In a major doctrinal shift, they force civil rights law to yield to employer claims of expressive association.

A. The Basics of the Doctrine

The right to expressive association is not enumerated in the Constitution, but rather derives from the First Amendment’s guarantees of petition, assembly, free speech, and free exercise of religion.³⁶ The Supreme Court has described the right as falling in the “close nexus between the freedoms of speech and assembly.”³⁷ Although all institutions reflect some degree of association and engage in some expression, only certain associational forms and aims are eligible for protection.³⁸ As one court put it, “there is no right of association in the abstract.”³⁹

Although the right of association has a long pedigree, it was not until Roberts v. United States Jaycees that the Supreme Court first explained the doctrinal contours.⁴⁰ There, the Court upheld the application of Minnesota’s sex nondiscrimination law to the U.S. Jaycees, a civic organization that excluded women from full membership. “Expressive associations,” as the Court labeled them, are due constitutional solicitude because they grant individuals the freedom to form groups “in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”⁴¹ Roberts insisted that “[a]ccording protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.”⁴²

As Roberts explained, governments might unconstitutionally infringe upon the freedom of expressive association in several ways. Most clearly, they might require a group “to accept members it does not desire” and in doing so “impair the ability of the original members to express only those views that brought them together.”⁴³ Freedom to associate, the Court observed, “plainly presupposes a freedom not to associate.”⁴⁴

As a membership organization engaged in civic and charitable activities, the Jaycees fell within the definition of an expressive association but ultimately did not merit protection. The Court said that only “serious burdens” on the Jaycees’ associational rights required heightened scrutiny.⁴⁵ And the organization had failed to demonstrate such burdens on “the male members’ freedom of expressive association.”⁴⁶ Its mission—promoting the interests of young men—could withstand the full admission of women.⁴⁷ The Court further noted that “even if enforcement of the Act causes some incidental abridgment of the Jaycees’ protected speech, that effect is no greater than is necessary” to ensure sex equality.⁴⁸ The government’s interest prevailed. And in the following years, the Court routinely concluded that antidiscrimination law granted ample room for expressive associations to speak and pursue their civic, social, and political goals.⁴⁹

The Court’s next major doctrinal intervention, Boy Scouts of America v. Dale, emphasized that leadership decisions in membership organizations are at the core of expressive associational rights. The dispute there arose between the Boy Scouts and James Dale, a volunteer assistant scoutmaster expelled by the Scouts for being gay and engaging in gay-rights activism.⁵⁰ For the first time, the Supreme Court decided that the right to expressive association trumped the state’s interest in equality.⁵¹

At the outset of its analysis, the Court found the Boy Scouts to be expressive on account of the organization’s goal to “instill” values in young people through scoutmasters who “inculcate” these values “both expressly and by example.”⁵² The Court described James Dale and the Boy Scouts as mutually understanding that Dale’s leadership position in the Scouts would send the message that gay men could be role models.⁵³ Highlighting the Scouts’ consistent official position against gay leaders, it then reasoned that retaining Dale, who the Court called “an avowed homosexual” and a “gay rights activist,” as a scout leader would force the Scouts to communicate a message of gay acceptance.⁵⁴ In the Court’s view, its decision simply allowed the club to “exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members.”⁵⁵ Note here both the perception that leadership positions present heightened risks to associational expression and the idea that a known and vocal dissenter detracts from the views uniting the members.⁵⁶ In the end, the Court concluded, the Scouts’ associational interests outweighed the state’s interest in nondiscriminatory public accommodations.⁵⁷

Just six years later, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Court rejected an expressive association challenge.⁵⁸ There, an association of law schools challenged the Solomon Amendment, which threatened to withhold federal funding from universities unless they provided the armed forces with access to their job-recruitment services. Because the schools opposed the military’s discrimination against gay men and lesbians, the association argued that compelling them to include military employers in recruiting efforts violated their expressive association rights.⁵⁹ In rejecting this argument, the FAIR Court did not deny that faculty and students might associate to express a message, and it noted that law schools “‘associate’ with military recruiters in the sense that they interact with them.”⁶⁰ But it dismissed the idea that the connection between recruiters and law schools created a constitutionally protected association.⁶¹

Expressive association doctrine settled into a three-step analysis. To qualify for constitutional solicitude, a group must first demonstrate that it is engaged in expressive association.⁶² Here, Dale insisted, “[t]he First Amendment’s protection of expressive association is not reserved for advocacy groups.”⁶³ Courts should generally defer to the association’s “assertions regarding the nature of its expression.”⁶⁴ Nonetheless, a group seeking protection must, through its associational choices, “engage in some form of expression.”⁶⁵ “[E]xpressive association,” the FAIR Court instructed, is a “right to associate for the purpose of speaking.”⁶⁶

Second, forced inclusion must “significantly burden” the organization’s ability to advocate its viewpoints.⁶⁷ While this analysis requires some deference to the association, an entity cannot make out a constitutional claim “simply by asserting that mere acceptance of a member from a particular group would impair its message.”⁶⁸ So long as members remain “free to associate to voice” their views, regulation is unlikely to significantly burden the expressive association right.⁶⁹

Finally, the right to freely associate may be overridden “by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas.”⁷⁰ As the Supreme Court said in NAACP v. Alabama, even an organization dedicated to core expressive purposes could “assert[] no right to absolute immunity” from state laws.⁷¹ Given the existence of an expressive association and a significant burden on its message, courts must decide whether the state’s interest in regulation is compelling. If it is, something like a balancing test applies, requiring courts to weigh the burden on association against the state’s interest.⁷²

At each of these steps, adjudication is to be driven by specific facts about the organization and its relationship to the would-be member.⁷³ Dale’s leadership role and responsibility to transmit values bolstered the Scouts’ claims, and both the Boy Scouts and Justice Stevens, in dissent, indicated that the expressive associational claim would not reach the Scouts’ employees.⁷⁴ As FAIR indicates, not all ties of a membership group would count as expressive associations.⁷⁵ State and lower federal courts have recognized this line of reasoning, distinguishing the relation of a group to its leaders or members from its ties to service providers, affiliates, and customers.⁷⁶ For example, while members and leaders of the Girl Scouts may be in expressive association with one another, the same cannot be said of those who buy Girl Scout Cookies.⁷⁷

Even where there is an expressive association, a court must conduct an independent review to determine whether the forced inclusion of an individual will infringe on that organization’s expressive association rights.⁷⁸ A close reading of the facts may reveal that compliance with regulation will not significantly impede a group’s message. New York State Club Ass’n v. City of New York provides strong support for this observation⁷⁹: There, the Court rejected a facial challenge to a nondiscrimination law that applied to clubs, and insisted that any particular association must make a specific showing that its constitutional interests were burdened.⁸⁰ Finally, even when a regulation burdens expressive association, courts must closely examine and weigh competing societal interests.⁸¹

Although Dale initially raised concerns of “a limitless right to exclude for every organization,”⁸² courts generally kept the right of expressive association rooted to its foundations. To be eligible for constitutional solicitude, groups needed some genuinely expressive end. Commercial and self-interested entities typically did not qualify.⁸³ Courts often held that those associations that did qualify retained other means of expression and thus could not complain of substantial infringements on their rights.⁸⁴ Employers, whether for-profit or nonprofit, did not rely on expressive association to shield them from antidiscrimination law—until recently.⁸⁵

B. The Emergence of Employer Expressive Association

Within the last decade, employers have laid claim to the right of expressive association. In 2018, a district court became the first to extend this constitutional protection to employers—there, a religious antiabortion center and the Catholic archdiocesan schools.⁸⁶ Since that time, federal courts, including two circuit courts, have decided more than a dozen lawsuits involving employers claiming an expressive associational right to engage in workplace discrimination.⁸⁷ Others are pending on the federal court dockets.⁸⁸ Employers say that the Constitution prohibits the state from requiring them to hire or retain any employee who entered a same-sex marriage, had premarital sex, accessed abortion or contraception, or otherwise acted inconsistent with the employer’s views.⁸⁹ Multibillion-dollar media companies assert freedom from antidiscrimination law because an employee played some part in their expressive activities.⁹⁰ With the decisions thus far near-evenly split, courts have failed to adequately explain both their refusal to extend the expressive associational right into employment and their willingness to do so.

Many courts still refuse to apply Dale to employment.⁹¹ But their analysis sometimes amounts to little more than a bare assertion that work is different.⁹² They may note that the expressive association right has been reserved for “parade groups, political parties, and other non-employment contexts.”⁹³ They frequently say that “[f]reedom of association does not apply in the employment context.”⁹⁴ They distinguish Dale by pointing to the fact that it involved the application of public accommodations law to a perhaps unusual defendant. And they note that the plaintiff was a volunteer for a private organization, not a worker engaged by an employer.⁹⁵

These courts’ thin analysis may be understandable. After all, their decisions reflect a long-standing status quo in the doctrine. Until 2018, no court had granted an employer an expressive associational right to opt out of employment law. Many of these decisions result from live disputes between employees and employers. In such cases, courts closely examine the relationship between the parties (or would-be associates) and any burdens on the entity’s expression, as doctrine demands.⁹⁶

What is more striking is that courts have offered little to no justification for the novel theory that employers enjoy associational freedom from workplace regulation. Take the first court decision to extend expressive association to employers, Our Lady’s Inn v. City of St. Louis.⁹⁷ There, a nonprofit crisis pregnancy center and approximately 100 archdiocesan elementary schools⁹⁸ challenged a city ordinance prohibiting employment discrimination based on pregnancy or other reproductive decisions.⁹⁹ They argued that the Constitution ensures them a right to restrict employment to individuals whose reproductive choices correspond with employer values.¹⁰⁰ The district court acquiesced without so much as considering the workplace context, simply saying that both entities qualified as expressive associations because they communicate their values.¹⁰¹ It then opined that the inclusion of any employee who did not share these values would significantly affect the employers’ ability to advocate their viewpoints.¹⁰²

The Second Circuit soon reached the same conclusion in Slattery v. Hochul, a challenge to a similar New York law known as “the Boss Bill.”¹⁰³ There, a crisis pregnancy center and school/recreation program argued that New York had unconstitutionally prevented an employer “from disassociating itself from employees who, among other things, seek abortions” or have extramarital sex.¹⁰⁴ The district court had disagreed, noting that there was nothing to stop the employers from continuing to effectively advocate their views and fire employees who conveyed dissenting views to clients.¹⁰⁵

On appeal, however, the Second Circuit found that the employers could state a claim.¹⁰⁶ Focusing on the crisis pregnancy center, the court determined at the first step that it constituted an expressive association in “aim[ing] to share [its] pro-life message with the world.”¹⁰⁷ The court assumed, in other words, that because the center engaged in expression, it was an “expressive association.”¹⁰⁸ This brief analysis seemed to imply that any entity, commercial or otherwise, that both involves two or more persons and is in the business of speech qualifies as an expressive association, regardless of whether there is anything meaningfully expressive about who is coming together.¹⁰⁹ At the second step, the court accepted that every employee had to be “a reliable advocate” of the employer’s views.¹¹⁰ It then concluded that hiring any employee whose reproductive choices did not match these views would significantly burden the employer’s message.¹¹¹

Here, Slattery elided any distinction between members in a civic organization and employees at work. The Second Circuit cited Roberts v. United States Jaycees for the proposition that a “regulation that forces the group to accept members it does not desire . . . may impair the ability of the original members to express only those views that brought them together.”¹¹² But Roberts, of course, involved voluntary membership rather than paid labor. The court then simply asserted, “Compelled 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.”¹¹³ Throughout its decision, the court repeatedly referred to employees as associational “members” (or occasionally “leaders”).¹¹⁴

At the final step, the Slattery court concluded that the employer’s interests outweighed those of the state. Workers, it said, can find other employment, but the employer cannot continue to express its view if it must refrain from discrimination based on reproductive choices.¹¹⁵ The basic idea is that an antiabortion stance is the defining value of a crisis pregnancy center, and the mere presence of a woman who has had an abortion would destroy its ability to express that message.¹¹⁶ On balance, the Second Circuit thought the impact on the employer’s message was so great that it outweighed the state’s interest in safeguarding workers.

Two years later, a different panel of the Second Circuit grappled with Slattery’s implications. In CompassCare v. Hochul, the court considered expressive association arguments advanced by crisis-pregnancy chains and several church-affiliated entities, including an outreach center, foster care agency, school, and recreational sports center.¹¹⁷ The district court below had concluded that the employers could not plausibly claim that antidiscrimination law burdened their rights of expressive association.¹¹⁸ Sympathetic to that finding, the Second Circuit panel noted some important differences between membership and employment, musing that “the Supreme Court’s decisions regarding the freedom of expressive association enjoyed by voluntary associations do not apply neatly to employers.”¹¹⁹ But bound by Slattery, it accepted that under some circumstances, an employer can make out a claim to expressive association. To do so, it held, an employer must allege and eventually prove that the retention of a specific employee poses a threat to “the very mission of its organization.”¹²⁰

A for-profit employer also successfully invoked expressive association rights in a bid for exemption from Title VII of the Civil Rights Act—a result unthinkable when Dale was decided. Enacted in 1964, Title VII prohibits employers with more than fifteen employees from discriminating against employees and applicants based on their race, color, religion, sex, or national origin.¹²¹ The statute applies broadly with only narrow exemptions. In 2021, however, Bear Creek Bible Church v. EEOC ruled in favor of Braidwood Management. Inc., a management company that refuses to employ LGBTQ+ people or tolerate gender nonconforming conduct.¹²² Braidwood claimed that Title VII’s ban on sex, sexual orientation, and gender identity discrimination violated its right to expressive association.¹²³

Any distinction between nonprofit membership groups and for-profit employers escaped the court’s notice. The district court began by simply stating, “ ‘The First Amendment’s protection of expressive association is not reserved for advocacy groups.’ Therefore, for-profit businesses like Braidwood may pursue a right of association claim.”¹²⁴ In the court’s view, the employer’s objection to the law sufficed to bring it within the First Amendment’s coverage. The business overtly expressed its view by refusing to employ individuals who engage in “homosexual conduct or gender non-conforming behavior.”¹²⁵ As for whether the employer should ultimately receive protection, the court treated the strength of the state’s interest in regulating for-profit employment as identical to its interest in the composition of a membership organization.¹²⁶ It thus concluded that, like the Boy Scouts, this management company must be exempted from antidiscrimination law.

Decisions in this vein significantly diverge from precedent. First and fundamentally, they import expressive association into the workplace. They turn a firm into an association expressive of (employer) values. The result is to exclude unwanted employees, rather than unwanted members. Second, the right to employer expressive association has blossomed in the abstract. In pre-enforcement cases with no factual record, courts fail to perform the fact-intensive inquiry that Supreme Court doctrine requires. Third, the analysis applies to all employees. Previously, even within advocacy organizations, leadership and speaking positions anchored associational rights. Under these recent decisions, an employer is free to discriminate “with regard to any role within the organization—from the most important to the most menial.”¹²⁷

That is not to say that employees would always prevail. Numerous other constitutional and statutory doctrines already apply to safeguard employer interests. For all employers, Title VII’s bona fide occupational qualification (BFOQ) defense¹²⁸ offers an exception to antidiscrimination law where employers can prove that religion, sex, or national origin is an “objective, verifiable requirement” that concerns “job-related skills and aptitudes.”¹²⁹ Courts sometimes find that employers qualify for the BFOQ exception if they can prove a conflict between an employee’s identity or behavior and their role in the organization.¹³⁰ For employers engaged in artistic endeavors, First Amendment compelled speech doctrine may shield casting decisions from antidiscrimination law.¹³¹ For religious institutions, Title VII permits discrimination in favor of coreligionists for all jobs.¹³² And the constitutional doctrine known as the ministerial exception shields all discrimination in choosing church leaders.¹³³ In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court recognized the right of religious entities to select and fire their ministers.¹³⁴ Even as it has articulated a relatively capacious understanding of who counts as a “ministerial” employee, the Supreme Court has consistently required that courts evaluate what an individual actually does within the organization to decide whether she qualifies as a minister.¹³⁵ No justice has indicated that this right would apply to all employees of any religious entity—whether a hospital chain, university, or social service provider. Employer expressive association would render this constitutional doctrine superfluous.

***

Courts once uniformly excluded employment relations from freedom-of-association law. No longer. The idea of employers’ associational rights is “on the wall.”¹³⁶ Slattery in particular is becoming influential. As arguments from employers proliferate, district courts eager to expand employer associational rights now have precedent to cite.¹³⁷ Any court wishing to maintain the distinction between membership and employment must provide a deeper justification for doing so.

II. Employment in the Supreme Court’s Doctrine

The recent employer-association decisions take as their underlying premise that Supreme Court case law is equivocal about the place of employment within freedom-of-association doctrine. But that narrow view misses the numerous ways in which the Court has situated employment at the periphery of associational rights. This Part rereads the central membership association cases and broadens the lens to capture cases involving boycotts, unions, and bar associations. It shows that throughout its decisions, the Court has insisted that labor relations are at the far end of the spectrum, where expressive associational interests fade. The closer membership organizations come to facilitating labor market participation, the more likely it is that applying antidiscrimination law comports with the Constitution.

A. The Boundaries of Expressive Association

The Court’s First Amendment doctrine has long separated associational relationships entitled to constitutional solicitude from those properly regulated by the state. Until recently, across cases in the Supreme Court and lower courts, expressive associations have shared the characteristic of being membership organizations. Cases tend to cover those voluntary groups that foster democratic participation, amplify individual voices, allow personal flourishing, or buffer against state power.¹³⁸ Civic institutions, churches, political parties, and advocacy organizations qualify for searching review of laws burdening associational freedom.¹³⁹ By contrast, schools, commercial entities, franchisees, and, sometimes, unions have generally gone unprotected.¹⁴⁰

Protecting expressive associations but not other relationships reflects a set of constitutional values. Notably, an expressive association provides a “medium through which its individual members seek to make more effective the expression of their own views.”¹⁴¹ It often advances a “major purpose” of the First Amendment—namely, “ensur[ing] that the individual citizen can effectively participate in and contribute to our republican system of self-government.”¹⁴² Associational freedom typically furthers the value of identity formation.¹⁴³ People gain a sense of self and form their personhood through membership in groups from book clubs to recreational sports. Finally, in their separation from the state, certain organizations—such as intimate associations like the family—bond people in “cultivating and transmitting shared ideals and beliefs” and “thereby foster diversity and act as critical buffers between the individual and the power of the State.”¹⁴⁴

The Court’s doctrine has long taken employment as the site where these constitutional values are at their nadir and the government may regulate. The leading case—and the one most cited by courts rejecting employer expressive association claims—is Hishon v. King & Spalding.¹⁴⁵ In Hishon, the law firm King & Spalding denied a female employee promotion to the partnership. She sued, claiming that the firm had violated Title VII’s prohibition on sex discrimination. In response, King & Spalding raised freedom of association. The Court quickly and soundly disposed of the idea that the First Amendment shields a private employer from antidiscrimination law.¹⁴⁶

In the years since, the Court has cited Hishon approvingly.¹⁴⁷ Hishon, however, is thin on analysis. It can be read narrowly as concerned with only the burden—or lack thereof—placed on a particular law firm. But the Court’s insistence on employment as a space of regulation, not associational freedom, cuts across a much wider swath of cases.

One can find this conception embedded in foundational freedom-of-association case law. Take, for example, NAACP v. Alabama. Set in the early years of the Civil Rights Movement, this case involved a challenge to the state of Alabama’s efforts to force the NAACP to disclose its members’ names and addresses.¹⁴⁸ Fearing harassment and violence, the organization invoked a First Amendment right to refuse to reveal the identities of “rank-and-file” members.¹⁴⁹ And the Court agreed, noting that disclosure would put pressure on existing members to disaffiliate and deter others from joining the cause. Protecting the group’s freedom of association preserved space for “dissident beliefs” against the political and social orthodoxy of the state.¹⁵⁰

But when it came to the NAACP’s employees, things stood differently. The Court was careful to highlight that the organization “has not objected to divulging the identity of its members who are employed by or hold official positions with it.”¹⁵¹ It noted that, in fact, the NAACP had provided “business records, its charter and statement of purposes, [and] the names of all of its directors and officers.”¹⁵² The Court’s tacit assumption was that employment and business matters fell on the regulable side of the constitutional line.

Roberts v. United States Jaycees reinforced the constitutional distinctiveness of employment. The Court began by setting out a spectrum of associations running from the family to the workplace. It said that “the Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse that would not apply to regulations affecting the choice of one’s fellow employees.”¹⁵³ Although this passage comes in the context of the Court’s discussion of intimate, rather than expressive, association, the contrast it sought to draw is clear. While some relationships are central to freedom of association, the employment relationship is not among them. In her influential concurring opinion, Justice O’Connor spoke more pointedly: “The Constitution does not guarantee a right to choose employees . . . without restraint from the State.”¹⁵⁴

The close nexus to employment helps explain the outcome in Roberts, along with the Court’s subsequent decisions on discriminatory clubs in Board of Directors of Rotary International v. Rotary Club of Duarte and New York State Club Ass’n v. City of New York.¹⁵⁵ As became clear over the decades-long arc of litigation, these clubs were designed to develop “business know-how” and draw members based on the business benefits of membership.¹⁵⁶ The Jaycees, for example, marketed its professional relevance, advertising that annual dues would be more than made up by raises gained through its programs.¹⁵⁷ Rotary International similarly described itself as “an organization of business and professional men.”¹⁵⁸ Across these men’s clubs, membership went hand-in-glove with employment opportunity.

The Court came to conceptualize business-oriented men’s clubs as an obstacle to fair play at work.¹⁵⁹ The majority opinion in Roberts emphasized the Jaycees’ labor-market function, noting the role of public accommodations law in “removing the barriers to economic advancement.”¹⁶⁰ The Court held that although the Jaycees had expressive association rights under the facts, assuring women access to the organization’s promised leadership training and employment promotions clearly furthered compelling state interests—much in the same way Title VII does for employment.¹⁶¹ Links to job opportunities justified regulation even of membership-based expressive associations. In upholding New York’s public accommodation law against a facial challenge in New York State Club Ass’n, the Court went further, reasoning that most large discriminatory professional clubs were unlikely to be eligible for exemption as expressive associations.¹⁶² Because these clubs were commercial in nature and closely connected to job opportunities, there was little reason to worry that women’s compelled admission would undermine any constitutionally protected message.¹⁶³

Nor is Dale to the contrary. The Dale Court found unusual the application of a public accommodation law to a leadership position in the Boy Scouts. It noted that the state court had “applied its public accommodations law to a private entity without even attempting to tie the term ‘place’ to a physical location.”¹⁶⁴ The Court further emphasized that expansion of the state law from “clearly commercial entities . . . to membership organizations such as the Boy Scouts” had increased the potential for friction with associational rights.¹⁶⁵

And in FAIR, the Court leaned heavily on the notion that job recruitment lacks the expressive qualities that give rise to associational rights.¹⁶⁶ The Court emphasized that law schools “are not speaking when they host interviews and recruiting receptions”;¹⁶⁷ they “assist their students in obtaining jobs,” rather than send any kind of message.¹⁶⁸ Facilitating hiring was remote from the kinds of membership decisions central to expressive association.

B. Boycotts, Unions, and Bar Associations

Looking beyond the standard set of membership organization cases, we can more clearly see the divide between expressive association entitled to First Amendment solicitude, on the one hand, and pursuit of labor-market rewards, on the other. Across cases involving boycotts, unions, and bar associations, the Court has contrasted civil rights groups, which are potentially able to claim protection, with groups involved in “resolving private differences”¹⁶⁹ or formed “for the primary purpose of financial gain,” which are presumptively excluded from protection.¹⁷⁰ The “common thread running through” the doctrine is of “collective activity” toward political or civic goals—not purely “private,” which is to say material, concerns.¹⁷¹ Groups need not be engaged in political advocacy to operate as expressive associations, but the pursuit of economic advantage dilutes their constitutional interests. Members may join, not to express, but to earn.

Let’s begin with the Supreme Court precedent involving boycotts. In NAACP v. Claiborne Hardware Company, for example, the Court held that an NAACP-led consumer boycott of businesses engaged in race discrimination was protected by the First Amendment.¹⁷² The Court emphasized the boycott’s political motivations.¹⁷³ It drew a sharp contrast with otherwise similar boycotts “organized for economic ends” and thus subject to the state’s power to regulate economic activity.¹⁷⁴

In FTC v. Superior Court Trial Lawyers Ass’n, the Supreme Court solidified this distinction. There, a group of trial lawyers in private practice organized a boycott designed to increase their own compensation.¹⁷⁵ In an effort to avoid antitrust liability, the group argued that Claiborne recognized their First Amendment right to boycott. But the Court rejected the analogy, writing that “[t]hose who joined the Claiborne Hardware boycott sought no special advantage for themselves.”¹⁷⁶ The goal of advancing private interest diminished the constitutional significance of the lawyers’ association.

The idea that associational rights wane when employment matters are at stake also plays a pivotal role in the Supreme Court’s treatment of unions. Unions, of course, are associations of workers who come together to amplify their voices collectively. They engage in an array of political and civic activities.¹⁷⁷ Like other voluntary groups, they are free to fight to advance laws and policies in legislatures, to campaign for candidates, and to affect public opinion. But unions are also closely linked to work and sometimes exercise employer-like functions, albeit without the control that the law grants employers.¹⁷⁸

In a long line of constitutional and statutory cases, courts have distinguished unions’ workplace-directed activities from their other advocacy. In 1945, when first confronted with a challenge to an antidiscrimination law from a racially discriminatory union, the Supreme Court saw “no constitutional basis for the contention that a state cannot protect workers from exclusion solely on the basis of race, color or creed by an organization . . . which holds itself out to represent the general business needs of employees.”¹⁷⁹ The union helped set “conditions of employment” so that depriving a worker of membership effectively altered his work.¹⁸⁰

Unions thus have little freedom to choose not to associate when working conditions are involved. Historically, unions negotiated “closed shop” and “union shop” agreements,¹⁸¹ which required all represented employees to be or become union members. Today, prohibitions on these forms of union security mean that workers can’t be required to join unions.¹⁸² Unions must also fairly represent nonmembers in negotiations and grievances.¹⁸³ The Supreme Court has long held that the National Labor Relations Act (NLRA) bars unions from imposing on represented workers any conditions beyond paying a mandatory “agency fee”: “ ‘Membership’ as a condition of employment is whittled down to its financial core.”¹⁸⁴ The phrase “as a condition of employment” is key. Unions may impose membership requirements beyond the “financial core,” but only if workers do not lose either their jobs or their right to union representation if they decline to meet those requirements.¹⁸⁵ And while scholars and unions have sometimes argued that unions’ First Amendment rights are violated when they are required to provide fair and equal representation to nonpaying nonmembers, those arguments have found no traction in the courts.¹⁸⁶

Whereas advocacy and civic organizations have a wide range of freedom over their internal procedures and elections, unions are extensively regulated. They operate under significant substantive rules and disclosure obligations.¹⁸⁷ In this way, unions are unlike the NAACP, Jaycees, Boy Scouts of America, Americans for Prosperity, and myriad other membership groups categorized as expressive associations and (sometimes) shielded from state regulation by the Supreme Court.¹⁸⁸ Unions’ associational rights are significantly limited precisely because they act upon the economic essentials of employment.

Consider the Court’s agency-fee cases. The doctrine holds that dissenting employees have a right to avoid compelled financial support for certain kinds of union speech.¹⁸⁹ The Supreme Court’s decision in Ellis v. Brotherhood of Railway Airline and Steamship Clerks illustrates.¹⁹⁰ In Ellis, dissenting employees objected to paying for a variety of union activities, including social functions, organizing, and litigation. The Court parsed these objections by probing the nexus between union expenses and concrete job-related issues.¹⁹¹ Taking this approach, it found that only those union expenditures related to contract negotiation were chargeable to dissenters.¹⁹² Although there is fuzziness around the edges, the basic line is between the union’s political and ideological endeavors and the union’s efforts related to its core economic function of collective bargaining.

Although the Supreme Court recently held that this line no longer holds in the public sector due to the inevitable role of politics in state employment,¹⁹³ the distinction still applies in private-sector workplaces covered by the NLRA and the Railway Labor Act (RLA).¹⁹⁴ Workers can be required to pay union costs that are germane to working conditions. But their contributions to the union’s other activities, such as participating in politics, are left to individual conscience. A worker can choose to participate in the unions’ more ideological activities, to actively work to undermine them, or something in between. This arrangement preserves employees’ autonomy over their own civic and political associations beyond the workplace.

These cases reflect that government has a much freer hand to regulate unions when they are acting as workers’ agents, and that workers have limited associational rights to opt out entirely. Even in the public sector, as the Supreme Court noted recently in Janus v. American Federation of State, County, and Municipal Employees, “[i]t is . . . not disputed that the State may require that a union serve as exclusive bargaining agent for its employees—itself a significant impingement on associational freedoms that would not be tolerated in other contexts.”¹⁹⁵ Precisely because the context is work, public sector employees find their associational rights limited. And so, although union-represented workers have recently argued that exclusive representation violates their First Amendment rights, every court to consider this claim has rejected it. A union’s speech, courts conclude, is not generally attributable to the workers it represents.¹⁹⁶ Workers remain free to speak against the bargaining positions of their unions.¹⁹⁷

A similar logic applies to state bar associations. State bars come in two varieties: mandatory for all practicing attorneys and voluntary.¹⁹⁸ In a pair of decisions, the Supreme Court curtailed the associational rights of mandatory bar associations. The Court drew a “substantial analogy” to employee unions, while conceding that bar members “do not benefit as directly from its activities as do employees from union negotiations with management.”¹⁹⁹ It held that bars can only compel association related to the regulation of lawyers or the improvement of legal services in the state—that is, the labor interests of attorneys.²⁰⁰ But the same rule does not apply to voluntary bar associations. Because access to the practice of law does not turn on membership in such groups, attorneys can exercise individual autonomy to join (or not).²⁰¹

Association at work, Supreme Court case law indicates, is different from voluntary membership in an expressive association. But why? What explains this throughline in the doctrine?

III. Coercion, Control, and Diversity at Work

Three principled bases justify the long-standing doctrinal separation of voluntary membership and wage labor: coercion through material benefits, control under a hierarchical relationship, and pluralism within the workplace. Section III.A argues that the importance of wages raises concerns about dependence and coercion largely absent from voluntary groups. Section III.B contends that the employer prerogative to control and command workers stands in stark contrast to the relative egalitarianism between members. Section III.C maintains that membership organizations and paid employment reflect radically different models of pluralism. While ideological affinities and bonds of affection tend to drive the formation of voluntary groups, the workplace has long drawn together people who differ in beliefs and identities. These three characteristics indicate that the employment relationship usually does not further the constitutional values of association. In general, an employer does not foster its employees’ democratic participation, amplify their individual voices, or shield them from state power.

A. Coercion Through Material Benefits

A central distinction between membership and employment turns on the potential for coercion. Work supplies wages and benefits, raising concerns about dependence and coercion that are absent where voluntary organizations are involved. To mitigate these risks, work law prioritizes and primarily regulates the distribution of economic resources.

For virtually everyone, material flourishing (or survival) depends on work. Although some workers have the ability to choose between jobs or to leave their existing employer, few have the means to opt out of employment altogether.²⁰² Additionally, the 20–40 percent of workers who live paycheck to paycheck and the majority of consumers who report little to no savings can only leave a job if another one is lined up.²⁰³ Health insurance, retirement, and other benefits can also lock people into the workforce and into specific jobs.²⁰⁴ An employee’s threat to walk away is a threat to withdraw labor, which may be replaced by another employee looking for a job.²⁰⁵ But an employer’s threat to fire an employee is a threat to exclude them from access to productive resources, insurance, and retirement. So, although the employment contract may have a formal symmetry, employers typically have the upper hand.²⁰⁶

High search and switching costs exacerbate the problem. Job searching requires time and energy—applications, research, networking, and interviews. Similar firms differ in ways that are difficult to discover and compare, ranging from flexible hours to rude managers, from free coffee to health plan deductibles.²⁰⁷ And moving from one job to another can come with significant costs, even for the most privileged employees.²⁰⁸ Workers typically acquire sizeable firm-specific human capital—skills valuable to one’s current employer but without value to other employers.²⁰⁹ A law firm associate, for example, learns firm-specific styles and formats, personalities of partners, and workflow in a particular group. These investments discourage even very talented employees from leaving their jobs—a disincentive that only increases the longer employees remain at a firm.²¹⁰ An employee’s firm-specific capital means that “when the person obtains a new job, her new wage may be less than the old wage, and the conditions and benefits of the job may be worse.”²¹¹ The result is a significant imbalance in bargaining power between employees and employers.

Developments in labor markets across the country have only sharpened these concerns. In recent years, employers have come to hold monopsony power in a variety of industries and locations.²¹² As a result, employees are even more constrained in choosing where to work or whether to leave their current positions. These labor market conditions, moreover, afford employers considerable power to alter the initial terms of employment without fear of employee pushback.²¹³ Under these real-world conditions, any idea that employees meaningfully assent to their employers’ objectives and values loses much of its force.

As courts sometimes recognize, material benefits distinguish voluntary membership from wage labor. The legal status of a volunteer signals no expectation of compensation and, therefore, indicates independence from the organization for means of survival.²¹⁴ The Restatement of Employment Law reads: “An individual is a volunteer and not an employee if the individual renders uncoerced services to a principal without being offered a material inducement.”²¹⁵ Under regulations interpreting the Fair Labor Standards Act (FLSA), a “volunteer” acts “without promise, expectation or receipt of compensation.”²¹⁶ In voluntary groups—whether devoted to Christian fellowship, racial equality, or social interaction—members are generally not dependent on the organization for financial resources. James Dale’s removal from the Boy Scouts meant the loss of his volunteer position, but it did not undermine his ability to sustain himself.

Voluntarism dramatically reduces concerns about coercion. As FLSA regulations underscore, a volunteer offers services “freely and without pressure or coercion, direct or implied.”²¹⁷ The experience of joining may be important to feelings of community and belonging. Nevertheless, participation is optional in a way that work typically is not—a reality that is reflected in the much-lamented decline in Americans’ participation in both secular and religious organizations.²¹⁸ With few tangible barriers to joining or quitting a group, the choice to associate can fairly be read as an endorsement of the group’s message—and the group’s choice to admit can be read as one of expressive association.

One might resist the characterization of associational life as fully voluntary. In particular, some take their religious participation to be mandated by God or set by birth.²¹⁹ In these and other groups, the prospect of exclusion—or perhaps excommunication—may exert pressure on members to conform to the group’s demands or expectations.²²⁰ Liberal constitutionalism’s approach to churches (and expressive associations more generally), however, depends on treating members as voluntary participants. As Micah Schwartzman and Richard Schragger have explained, the definition of a church as voluntary “is a necessary (but not sufficient) condition” for granting it some liberty from regulation of its internal governance.²²¹ The state does not interfere in a church’s application of its internal rules, even to dissenting members, because its members are not compelled to remain in the church—they lose neither civic nor economic standing through exit.²²² The same logic applies to relations between genuinely expressive associations and their members.

The Supreme Court’s opinion in Tony & Susan Alamo Foundation v. Secretary of Labor elaborates on this line between work and membership.²²³ There, the Court rejected a religious employer’s argument that its vulnerable, unpaid workers, who relied on the employer for room and board, were volunteers rather than employees. It did so because the employees were “entirely dependent” on the employer and therefore not meaningfully free to reject its dictates.²²⁴ Facing an employer’s claim to religious exemption, the Court refused to rely on the workers’ assertions that they viewed themselves as volunteers and did not want pay, citing the obvious risk that such testimony could be coerced with the threat of eviction.²²⁵

Although some courts have identified material benefits as a reason to reject employer expressive association, they have failed to see how the coercion inherent in labor defies the constitutional value of individual autonomy. The financial need to earn wages requires both finding and keeping a job. One might even see the state as actively encouraging participation in the paid labor force through social messaging and more forceful interventions such as welfare-to-work programs.²²⁶ By contrast, as courts have sometimes observed, “admission to private clubs, such as the Boy Scouts of America, is entirely elective with no encouragement of participation from the state.”²²⁷

Work law further distinguishes between volunteers, who act “solely for [their] personal purpose or pleasure,” and employees, who work for their employer’s purpose.²²⁸ As courts have observed, the benefits that individuals receive from joining a voluntary group “are overwhelmingly personal and non-economic.”²²⁹ The Sixth Circuit, for example, held that workers at a church-run restaurant were true volunteers because they worked solely out of a sense of religious obligation.²³⁰ As the court put it, “[t]he type of coercion with which the FLSA is concerned is economic in nature, not societal or spiritual.”²³¹ The importance of wages undermines any notion of an association freely chosen to advance individuals’ personal purposes.

Keeping in mind these three important and interrelated considerations—compensation, coercion, and purpose—work law primarily addresses employer practices that impose direct economic harm on workers. Take, for example, Title VII of the Civil Rights Act. Bread-and-butter cases involve discrimination that affects, as the statute puts it, the “terms, conditions, or privileges of employment.”²³² Generally, dignitary harms are excluded from antidiscrimination law.²³³ The Supreme Court has observed that “normally petty slights, minor annoyances, and simple lack of good manners” do not suffice,²³⁴ because Title VII is not “a general civility code for the American workplace.”²³⁵ Indeed, hostile-environment harassment initially fit awkwardly into this framework, because harassment often lacks direct economic consequences.²³⁶ And even today, as one commentator notes, “the basic tension between harassment claims and the prototypical discrimination suit” remains in the form of a heightened proof requirement that sets discriminatory harassment “beyond Title VII’s purview” unless it is severe or pervasive.²³⁷

The courts’ statutory interpretation reflects the fact that risks of coercion are reduced where material benefits are not at stake. Cases related to coworker ostracism underscore this point. Coworker unfriendliness usually does not qualify for legal remedy.²³⁸ A worker cannot complain that their coworkers are rude, don’t celebrate their birthday, or refuse to invite them to lunch.²³⁹ At the same time, some social events and outside-work activities do translate into material benefits. As courts have recognized, events outside the workplace and after hours—like golf games or weekly training lunches—can provide access to supervisors and affect salaries and raises.²⁴⁰

In this sense, employment discrimination law reflects associational interests. As the Ninth Circuit stated, “[b]ecause an employer cannot force employees to socialize with one another, ostracism suffered at the hands of coworkers cannot constitute an adverse employment action.”²⁴¹ Making workers socialize would squarely interfere with their own interests in forming personal associations and friendships. Insisting that employers ensure workers are not excluded from activities closely related to success at work hews more closely to the regulatory goal of distributing material benefits.

B. Control Over Employees

The second critical distinction between membership and employment lies in the exercise of organizational authority. Membership groups are characterized by relative egalitarianism. Many function with limited hierarchy and adopt norms of shared governance.²⁴² Members do not regard group leaders as their “bosses,” and leaders do not treat members as their subordinates.²⁴³ By contrast, as Robert Post has argued, in the workplace, “an image of dialogue among autonomous self-governing citizens would be patently out of place.”²⁴⁴ At the root of this difference is employer control over workers.

Control’s constitutive role in employment is deeply ingrained in law. Take American employment law’s precursor: the “master-servant” relationship.²⁴⁵ At common law, the master issued orders, and the servant obeyed. Though that terminology has gone by the wayside, employer control remains central to defining employment.²⁴⁶ The common law control test spans a remarkably wide variety of legal doctrines.²⁴⁷ It governs who qualifies as an employee under the Copyright Act’s “work made for hire” provision.²⁴⁸ And it has been adopted as the test for employee status under statutes governing pensions,²⁴⁹ labor relations,²⁵⁰ social security,²⁵¹ and employment discrimination.²⁵²

Control characterizes the employment relationship regardless of whether the employer is a large corporation, medium-sized LLC, small partnership, or nonprofit organization. Who counts as an employee is decided by looking for hierarchy and worker responsiveness to the employer. Management, workers, and outsiders all understand that within the scope of employment—determined by the time, place, and manner of work—employees are subject to employer authority. They further their employer’s purpose, not their own individual aims.

At work, the employer’s right of control is near total. Employers can (and do) tell employees where to go, what to do, how to dress, and much more. In many workplaces, employers monitor and set the minute details of employee activities, down to how many key strokes they make and when they are allowed to take bathroom breaks.²⁵³ On some accounts and according to a quarter of Americans, employer authority is so complete that it transforms the U.S. workplace into a “dictatorship.”²⁵⁴ To be sure, employees can quit, but that will typically mean subjecting themselves to another arbitrary authority (provided there is one willing to hire them). Even in workplaces that workers rate as good,²⁵⁵ the essentials of the legal hierarchy and its command-and-control structure remain the same. Employers issue orders backed by the threat of sanctions, and employees follow those orders lest they lose their means of survival.²⁵⁶

Employer control means that voluntary groups and paid employment use contrasting governance structures. In voluntary organizations, power can be balanced. Members can feel at liberty to express disagreement with group decisions or to dissent from what they take to be a wayward direction the group has taken.²⁵⁷ This back-and-forth typically occurs in a system of shared governance among individuals on more-or-less equal footing.²⁵⁸ In the workplace, managers rarely invite employee input into their decisions.²⁵⁹ Most workers do not have any real ability to act on (or even voice) their disagreement or dissatisfaction.²⁶⁰ Dissent is likely to be seen as insubordination, rather than healthy participation. The few command the many in a way that is “incompatible with relations of equality.”²⁶¹

Employer control explains why practices that look like the communal decisionmaking of voluntary organizations are unfair labor practices when implemented in an employment setting. A century ago, “company unionism,” in which an employer-sponsored organization displaces an independent labor union, was widely used to suppress worker voice and activism.²⁶² The NLRA ultimately outlawed the practice as an anti-union tactic.²⁶³ Congress recognized that genuinely shared decisionmaking is illusory in nonunion workplaces. The communal approach will exist only as long as the employer tolerates it—at any moment, the employer might invoke their authority and issue commands.

Dynamics of control are also critical in understanding what is not an employment relationship. Agency law differentiates between employees, for whom an employer is liable within the scope of their employment, and independent contractors.²⁶⁴ The independent contractor’s distinguishing feature is that the “individual in his or her own interest exercises entrepreneurial control over important business decisions.”²⁶⁵

The ability to steer the business also separates owners from the labor force. If someone has a large enough ownership stake to set the direction and agenda of the firm, she is more than merely an agent who takes orders from a principal.²⁶⁶ Controlling owners are more like coprincipals who, together with others, issue orders on behalf of the organization.²⁶⁷ For this reason, the law generally places controlling owners outside the ambit of employment.

Similar considerations explain why some areas of work law exclude managers from the category of employees.²⁶⁸ Managers are part of the governing structure of an organization and are therefore not entirely subject to its control. The power that comes from ownership interest, managerial office, or some combination thereof makes them part of the organization’s governing apparatus, rather than part of the labor force it governs.

Just as coercion through material benefits distinguishes employment from voluntary membership, control over workers marks off the employment relationship from the comparatively egalitarian interactions among members. Whereas members express themselves through their associations, employees routinely respond to orders from their bosses. And when employees do seek to express their own views at work, they can be authoritatively redirected toward the employer’s desired ends.

C. Pluralism in the Workplace

Finally, membership organizations and paid employment reflect radically different models of pluralism. In voluntary organizations, members are united by their common personal identities or interests—whether in shared religion, outdoor activities, or political partisanship, to name a few.²⁶⁹ These bonds are deeper than, for example, those of strangers who are merely “patrons of the same business establishment” and have not joined together to express shared beliefs.²⁷⁰ As individuals draw together to amplify their individual voices, they form a landscape of myriad groups with views distinct from the state or majority.²⁷¹ In turn, associations may buffer individuals against the encroachment of state power and the risk of orthodoxy.²⁷² Flowers of every variety bloom.

This picture does not match the legal, social, and economic norms of employment. As a general rule, work is not organized around the logic of amplifying the voices of individuals who wish to promote a common belief. People from all walks of life come together to make a living. They encounter others from many different backgrounds who hold a variety of values.²⁷³ Indeed, the modern workplace may be the only sector of social life where diverse groups regularly interact.²⁷⁴ What individuals have “in common is the firm, and what they share is a commitment to laboring to achieve their employer’s economic goals”²⁷⁵—not their personal aims.

Even those courts siding with employers on their expressive association claims have implicitly assumed a pluralism within workplaces rather than a rigid differentiation between workplaces. Recall the Second Circuit’s observation in Slattery that the employer’s right to expressive association outweighed any burden on employees because they can find other options in a functioning labor market.²⁷⁶ The court saw employers—with the exception of the plaintiffs before them—as basically fungible and generally willing to hire workers with diverse beliefs and experiences. No “moral marketplace” of widely varying workplaces supported its decision to grant the employers expressive associational rights.²⁷⁷

Work law both fosters a measure of diversity in employment and assumes the existence of other forms of difference. It does so most obviously by insisting on equal employment opportunity without regard to social markers such as race, sex, religion, or national origin.²⁷⁸ Instead of promoting thick bonds of identity, the law bridges these fault lines in the limited sphere of work.²⁷⁹ Regulators and courts also assume diversity along other dimensions. Labor law, for example, takes as given that unions will have dissenters and that workers will disagree with their employers.²⁸⁰ Social insurance and employee benefits programs, for their part, understand workplaces to offer a cross-section of society—differing by age, family composition, and disability.²⁸¹

On the buffering theory of association, voluntary associations act as a shield against the totalizing ambitions of an authoritarian state. But when it comes to employment, these roles are reversed. It is the state that must protect employees from employers’ arbitrary or abusive treatment. Common law and statutes set a floor of basic guarantees for the terms and conditions of employment. The law tells employers who they may and may not employ.²⁸² It ensures that workplaces meet minimum standards for occupational health and safety.²⁸³ It details at length how employers must interact with employees who have formed a union or are considering doing so.²⁸⁴ And the list goes on.

State regulation aims to blunt the authoritarian tendencies of management—tendencies invited by their hold on material resources and their control of employees at work. Common law and statutes thus recognize a realm of “reasonable expectation of privacy” for employees. They create some safeguards for workers’ persons, possessions, and personal information—such as genetics, credit scores, and drug tests—against employer intrusion.²⁸⁵ As one commentator observes, “[t]his sharp divide between personal and employment-related information is meant to protect workers’ autonomy while enabling them to participate in team production.”²⁸⁶ Rather than rely on their employers to stave off the state, workers need the state to step between them and management.

Work law also limits employers’ control over their employees’ values and voices. Numerous state laws carve out space for employee associational and private life. They prohibit employers “from coercing or attempting to coerce workers’ political speech and association.”²⁸⁷ They preserve workers’ ability to affiliate with political parties, make campaign donations, and vote.²⁸⁸ A number of states provide protections against discrimination or discharge related to any lawful off-duty activities.²⁸⁹ As the Restatement of Employment Law explains, “There is a public interest in employees’ personal autonomy because it is critical to engagement in civic life. Employees must be free to express their own ideas and concerns in order for the public sphere to flourish.”²⁹⁰ Employment regulations encourage associational life, granting workers freedom to pursue politics, civics, and religion, and to diverge from their employer’s orthodoxy in their private lives and democratic participation.

Again, work law is not indifferent to organizational interests. One might see respect for associational value in how federal employment discrimination law, for example, limits its scope to larger employers. Genuinely small employers may involve the kind of selective relationships and small group sizes for which freedom-of-association jurisprudence has shown special solicitude.²⁹¹ A similar point can be made about Title VII’s BFOQ defense.²⁹² This narrow exception to antidiscrimination law is available when employers can prove that religion, sex, or national origin is an “objective, verifiable requirement” that concerns “job-related skills and aptitudes.”²⁹³ Likewise, statutes often carve out religious nonprofit exemptions from certain obligations. Title VII, for example, permits religious institutions to engage in discrimination in favor of coreligionists—essentially authorizing the construction of a religiously homogenous workforce.²⁹⁴ Many other statutes exempt religious employers who have the inculcation of religious values—rather than the provision of social services or healthcare—as their purpose and who primarily employ and serve persons who share the same religious tenets.²⁹⁵

***

In this Part, we have excavated three deep disanalogies between voluntary membership and employment. The employers’ role in distributing material benefits raises the specter of coercion that is typically absent from voluntary groups. The employment relationship centers on control, while membership entails shared governance. And modern workplaces mix people together, while the buffering function of voluntary associations calls for more fractional arrangements. Taken together, these disanalogies undergird the law’s long-standing antipathy toward associational claims related, even indirectly, to employment.

IV. Doctrinal Applications

This Part turns to doctrinal implementation. The three features of employment—economic coercion, hierarchical control, and workforce diversity—mean that employers’ expressive-association claims should generally fail Dale’s first two prongs. The average employment relationship is inadequately expressive, and the employer can almost always sufficiently voice its message even if regulated. The distinctions between employment and voluntary membership also allow a more complete evaluation of when and where the state’s interest becomes compelling—the third prong of Dale. We illustrate this approach in the context of burgeoning cases involving for-profits, media companies, and religious institutions.

A. Employment and Expressive Association

Are employers expressive associations? Decisions like Slattery suggest that an employer qualifies as an expressive association as long as it engages in any expression.²⁹⁶ To reach this conclusion, courts collapse the idea that a corporation speaks and the question of whether employees are “members of the [employer’s] expressive association.”²⁹⁷ Taken to its extreme, this logic would transform every employer into an expressive association.²⁹⁸ In some sense, all workplaces provide an organization for “individuals to join together and speak”—in the language of expressive association doctrine—whether to write legal briefs, book luxury vacations, or promote pharmaceutical sales. But corporate speech is not identical to expressive association. Looking to economic coercion and employer control instead reveals that the typical employment relationship is not meaningfully expressive.

Recall that expressive association demands some degree of mutual understanding between the group and a member regarding the message sent via association. This mutual understanding seems to have been present in Dale. As the Court observed, James Dale and the Boy Scouts appeared to agree that his presence as a leader would convey a message that gay men could be role models.²⁹⁹ They disagreed largely about whether that message was desirable. In cases involving the NAACP, joining the group signaled commitment to furthering racial equality.³⁰⁰ The group’s goals could be attributed to its members. Church attendance similarly indicates some common set of beliefs.

Generally, employers and employees do not associate with one another in an expressive manner. The fact that employees work for life-sustaining pay cuts against finding “expression” in employment relationships. The primary message is “these wages are acceptable compensation for this work.” The affiliation is instrumental to economic well-being, not essential to self-definition.

To be sure, both employers and employees care about finding a good match along a complex array of characteristics, including compensation, hours, skills, personality, coworkers, geography, and values.³⁰¹ Applicants report being drawn to organizations based on signals like community orientation, stability, or respectability.³⁰² Some employees and employers share a commitment to a cause.³⁰³ And people can derive some measure of identity through affiliation with an employer. A University of Michigan faculty member may feel proud about the university’s prestige and reputation and root for the “Blue.” But the administration’s decisions are unlikely to be attributed to her, nor her views to the university as a whole. She could move to another institution without losing herself, in contrast to, for example, a divorce or leaving her church.

The legal relationship of employer-employee generally does not signal a worker’s authentic identification with the employer’s message or an employer’s endorsement of their employees’ values. Nor does it suffice to say that workers agree to the terms of the exchange. As an empirical matter, jobseekers are unaware of an employer’s commitments or unable to assess them.³⁰⁴ Studies show that employees often are ignorant of the precise terms of their work, including their compensation.³⁰⁵ Employers rarely explain the “boundaries of an employee’s obligations” and typically have ambiguous, flexible policies.³⁰⁶ In most cases, employees are not in an ongoing conversation about how best to develop and amplify their own ideas or beliefs. Indeed, the employer’s overwhelming authority can leave workers fearful of advocating for themselves.³⁰⁷

An example demonstrates how voluntarism affects expression. Say a member of a voluntary association spends many early mornings and late nights engaged in its activities. An observer might reasonably regard her as especially committed to the organization’s goals. The member could be seen as closely identified with the organization and the group regarded as a vehicle for her individual beliefs. But no observer would draw similar conclusions about an employee’s demanding work schedule.

The pervasiveness of managerial control further suggests that taking or staying at a job does not reflect what employees genuinely think and feel. A helpful contrast might be drawn to unions. Unlike unions, employers do not amplify their workers’ collective voice. Janus illustrates this point.³⁰⁸ In Janus, the Court distinguished employee speech through a union from employee speech on the job. As the Court put it, “when an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer. The employee is effectively the employer’s spokesperson.”³⁰⁹ In daily workplace activities, workers give over a portion of their autonomy and subject themselves to their bosses’ “right to rule.”³¹⁰ They must set aside personal goals in favor of organizational objectives.³¹¹

Recognition that coercion and control help set the boundaries of expression is consonant with adjacent areas of the First Amendment. Consider the speech rights of public-sector employees. In Garcetti v. Ceballos, the Supreme Court held that the First Amendment does not protect public employees speaking “pursuant to their official duties.”³¹² A government attorney “did not act as a citizen” addressing a matter of public concern when he “went to work and performed the tasks he was paid to perform”—he “acted as a government employee.”³¹³ Employer control provided the justification. According to the Court, restrictions on employee speech “simply reflect[ed] the exercise of employer control over what the employer itself has commissioned or created.”³¹⁴ A public employee’s speech on the job, in other words, is not really their speech at all—it is the employer’s.³¹⁵ Thus, when a public employer terminates a spokesperson who refuses to toe the company line, it responds to insubordination; it does not infringe the employee’s right to individual autonomy.

Already, courts have imported Garcetti’s reasoning into their analysis of public employees’ expressive association claims. In Sullivan v. Washington, for example, the Ninth Circuit determined that members of a public university committee were not exercising rights to expressive association in their committee work.³¹⁶ They had been “appointed by the University to serve its public function”—that is, their association was for the purpose of the employer. And the committee’s preparation of reports fell “within the scope of the member’s official duties” and thus was “unprotected public employee speech” under Garcetti.³¹⁷ The association between committee members did not occur through exercise of individual autonomy. Nor did it express their own views.³¹⁸

If taking a job is not usually expressive association, what about offering one? What message does a business send by hiring or retaining a worker? Here too, as a general rule, employers do not express any message, let alone a particularized one. When a manager says, “you have the job,” you do not hear that they support your marriage or opposite-sex marriages more generally. You understand that your qualifications are right for the position. The existence of an employment relationship fails to signal an employer’s endorsement of its employees’ actions, beliefs, or characteristics to the world.³¹⁹

And this inquiry is key to expressive association doctrine, which turns on whether the inclusion of an unwanted member expresses a message to listeners. Justices have noted that public perceptions explain the Court’s associational case law. The Dale Court took the choice of a scout leader to send a message of gay approval to other scouts and the public at large, whereas in FAIR, no reasonable person would believe the “law schools agree[d] with any speech by recruiters.”³²⁰ Courts thus tend to consider whether the application of a law to an entity would “lead others to believe” an association existed and, in turn, perceive the association to express the entity’s message of support.³²¹

We can explore this basic premise by working from easy to hard cases. Start with Uber’s recent effort to claim expressive association with its drivers.³²² Uber drivers are diverse, ideologically unaligned with each other and the app, and paid to drive. They do not join the app to amplify their voices. As the district court observed, the company’s “desire to ‘associate’ with the ‘app workers’ is ultimately to derive revenue, build good will, and compete with other” companies, not to bring together “individuals who wish to share and learn common values and skills.”³²³ The association is not expressive; Uber does not express a message through the inclusion of particular drivers, and drivers do not express a message by joining with Uber.

Media companies might seem to present a more difficult scenario. A newspaper publisher or film studio, to give a few examples, engages in expression protected by the Free Speech Clause. Their decisions about who to hire might seem to qualify as expressive association. For example, a TV show or play’s casting may be essential to its message—the story of a multiracial family or a deaf couple. But here, courts have rejected employers’ expressive-associational arguments even as they have recognized speech rights against the application of antidiscrimination law.³²⁴ Otherwise, editorial or artistic discretion would shield all hiring decisions from work law.³²⁵

Consider Carano v. Disney. Gina Carano, an actress on the Disney show The Mandalorian, filed a lawsuit under a California labor law prohibiting employer retaliation for political beliefs. Disney terminated her employment after she compared being a Republican in America to being a Jew during the Holocaust on her social media account. Her posts, the company said, were “abhorrent and unacceptable,” and Carano herself did not “align with Company values.”³²⁶ There is no doubt that Disney’s activity—filming a show—is speech. And the actors and studio come together for this activity. But there is no reason to think that hiring Carano or other actors sends a message from Disney that its values and speech are identical to those of its employees.³²⁷ As an ordinary actor, she doesn’t speak for the company. So, her expression of personal views while off duty is far less likely to be heard as Disney’s message—particularly because Disney was free to make its own views known to the public. Thus, at the first prong of Dale, the company’s expressive association claim should fail.

To be sure, expressive employee-employer relationships are possible. For example, suppose an employer offers a “hometown hero” a job as company spokesperson, specifically hoping to associate itself with the hero’s good reputation. Suppose further that the hero frequently turns down similar offers, accepting only positions at companies she believes in. Taken together, these facts suggest that the decision to associate can be an expressive one. The employer-employee relation here approximates membership—it has a more voluntary nature, involves a figurehead position, and signals alignment of the person and organization.

This inquiry necessarily takes place on a relationship-by-relationship basis. Consider the Catholic Diocese of Charlotte, which claimed an expressive associational right to fire a part-time teacher who, it had discovered, was in a same-sex marriage.³²⁸ The diocese has thousands of employees, including “secretaries, information technology specialists, food service workers, teachers, substitute teachers, and building maintenance crews.”³²⁹ It does not require most employees to be Catholic nor does it typically inquire as to their religious affiliation.³³⁰ The diocese does not form an expressive association with someone hired to keep the books or improve the landscaping. Where noncommunicative jobs—office or clerical personnel, for example—are involved, hiring a gay employee does not force employers to broadcast a message of support for gay people.

Some set of relationships, however, might qualify for constitutional solicitude. Take, for example, the diocese’s hiring of an employee to speak publicly about family values. That position denotes a certain shared belief and authority to advance an organizational perspective. In short, expressive association and employment are presumptively (but not always) a mismatch. Facts of economic coercion and workplace control support a general conclusion that employers and employees do not form expressive associations.

B. Insubstantial Burdens on Employer Speech

We turn now to the second prong of Dale—namely, whether an expressive association can adequately express itself if regulation applies. Employers have articulated varying theories of the “burden” imposed by employment law. The archdiocese’s defense of its decision to fire guidance counselor Lynn Starkey contains three: unwanted employees interfere with the employer’s message, they disagree with the employer on an issue, or they reject the employer’s core values.³³¹ Crisis pregnancy center Evergreen adopts still another theory: unwanted employees’ “lives contradict the message Evergreen exists to convey.”³³² Uniting these theories is the notion that continued employment would alter or undermine the employer’s message.

Focusing on the nondiscrimination context in which claims most often arise, we argue that application of such obligations generally does not put a serious burden on an employer’s ability to convey its message. Together, the expectation of worker diversity and the concept of employer control help us draw several important lines. First, the degree of burden will depend on whether the objectionable conduct or speech is off-duty or in the scope of employment. Second, management or policymaking positions present more risk to an employer’s message than do rank-and-file jobs. Third, due to their authority, employers will often have ample ways to reduce or eliminate any countermessage that a particular employee’s presence might convey.

As an initial matter, the scope of employer control can usefully delineate a zone where employee speech might be attributed to the firm. At the time and place of work, an individual might manifest personal views contrary to the employer’s values. His employer might reasonably be concerned that clients will misattribute this speech to the business, undercutting its goals. By contrast, an employee’s off-duty “choice of sexual partner, political candidate, or Facebook posting has nothing to do with productive efficiency”—or any other employer objective—and thus employer authority over those decisions cannot be assumed.³³³

To see why off-duty conduct should be treated differently from speech in the course of employment, consider two hypothetical crisis pregnancy center employees. The first employee—call her Anna—had an abortion when she was younger, which she discusses freely with her friends and family but keeps to herself at work. The second employee—call her Betty—believes it is her responsibility to tell pregnant clients that she had an abortion and that they ought to consider getting one too. Betty’s expression flatly contradicts the message her employer seeks to send. But Anna’s continued presence as an employee sends no message at all.

In other words, courts should be extremely skeptical of arguments that employees’ personal lives significantly burden their employer’s expression. For this sort of burden to be plausible, an organization’s clients would have to first be in a position to learn of the employee’s off-duty conduct and then decide that the conduct impairs the employer’s message to a greater degree than if the employee were merely a member of the public. This showing should be difficult in most circumstances. Clients might instead conclude that the employee is flawed or a hypocrite. Or they might think the employee’s free time is their own business.³³⁴

Even within the time and place of work, some worker speech does not significantly burden the employer’s message. For example, labor law shields workers’ union-related speech at work, though employers are likely to regard it as counter to their interests.³³⁵ Yet no third party is likely to confuse unionized workers’ speech with that of their employer. Union picketers may cause the public to question the truth of, say, an employer’s message that it pays best-in-class wages—but they would not come away thinking that the employer itself communicates that it pays mediocre wages. Given expectations created by law, there is little potential for confusion.³³⁶ The firm’s own message is undisturbed.

A second line for determining burden relates to leadership. Recall that the Dale Court strongly distinguished between rank-and-file and leadership positions in expressive associations.³³⁷ A leader is often personally identified with the group. She is likely responsible for shaping the organization’s direction.³³⁸ This authority often includes an ability to speak for or as the group, which creates a plausible argument that a leader’s extracurricular speech or conduct might be attributed to the group itself. That’s why, for example, an abortion-rights group would have a stronger expressive association claim regarding its executive director than it would with a line employee. While one can easily separate an employer’s message from the personal beliefs of ordinary employees, the same cannot necessarily be said of leadership. Organizations also may struggle to direct (or redirect) leaders in situations where lower-level members could be subject to reprimand—or, in the case of employees, control.

This analysis is consistent with the special treatment accorded to ministers in religious organizations. Under the First Amendment’s ministerial exception, ordinary employment discrimination laws may not be applied to certain employees who are responsible for sustaining or transmitting the faith.³³⁹ Paradigmatically, this doctrine means that although employers are generally forbidden from discriminating on the basis of sex, the Catholic Church may continue to maintain an all-male clergy. Even if there were no “special solicitude” for religious organizations,³⁴⁰ the Church would have a strong expressive association claim to exemption from sex discrimination law regarding its leaders.³⁴¹

We might helpfully analogize to the so-called “patronage cases.” In these cases, public employees were threatened with dismissal unless they joined (or volunteered for) the political party of their boss. The Supreme Court has policed government employers’ patronage demands as a danger to individuals’ “freedoms of belief and association” under the First Amendment.³⁴² Here, we see the Court acknowledge employer coercion: The “risk of losing his job” and income, the Court has said, means that an employee cannot refuse such demands and must conform to his boss’s political associations.³⁴³

In its patronage cases, the Court has distinguished rank-and-file employees whose responsibilities “have only limited and well-defined objectives” from those in policymaking positions with broad and less-well-defined discretionary power.³⁴⁴ Ordinary workers have rights against political patronage because they lack significant input into employer policies—and thus cannot be thought to speak for their employer. And the employer has “less drastic means for insuring government effectiveness and employee efficiency” in the form of employer control.³⁴⁵ By contrast, political allegiance can be a valid requirement for certain high-level positions. As the Seventh Circuit observed in applying this doctrine, policymaking positions come with a “heightened need for trust and confidence that . . . subordinates are guided by the same political compass,” lest they “thwart the political goals of the party in power.”³⁴⁶ Policymaking jobs involve agenda-setting authority not easily subject to control. A policymaker’s discretionary power creates “room for principled disagreement” and makes it hard to fire them for insubordination.³⁴⁷ In expressive association cases, courts should draw on this doctrine and be more willing to find that an employer’s rights are burdened when a managerial position is involved.³⁴⁸

Third and finally, the burdens of complying with antidiscrimination law will rarely be substantial, because employers have ample tools to protect the integrity of their own messages. First, the fact of control means that employers can micromanage work.³⁴⁹ Expressive employers can keep their workers on message. A religious school, for example, may set the parameters of a health curriculum, preventing teachers from discussing contraception use contrary to its religious views. Dictating what employees do and say on the job is both legally permissible and consistent with employee expectations. Second, where an employee refuses to comply with speech restrictions within the scope of her work, an employer can fire her for insubordination.³⁵⁰ A religious crisis pregnancy center, for example, “could fire an employee who advised a patient to have an abortion, use birth control, engage in sex outside of marriage to a person of the opposite sex, or declared that God did not exist”—or who publicly advocated such positions.³⁵¹ Third, an employer troubled by an employee’s protected or off-duty speech is free to engage in counterspeech.³⁵² It may disavow or contradict the employee’s message—perhaps even by saying, “I’d like to fire this employee, but my hands are tied by the law.”³⁵³

Pulling together these three lines allows us to evaluate Beneker v. CBS.³⁵⁴ Beneker’s claim related to the time and place of work. But the company cannot claim that the mere presence of a white man in the writers’ room undermines its preferred message. Some employees—perhaps the “executive producers”—might have the sort of creative autonomy that would make it difficult for the company to send its own message. But an ordinary employee at CBS—even one in a creative role like writing—is subject to a company hierarchy that can channel his efforts toward the company’s message. So, if a writer offers storylines that are at odds with, say, a pro-diversity message, the company is not obliged to accept them. It can exercise authority over the kinds of stories that the writer crafts. And if the writer refuses direction, the company would be justified in disciplining or terminating him. On this analysis, even assuming CBS is an expressive association, it seems to experience no substantial burden on its speech from Beneker’s employment.

By contrast, if a court were to (incorrectly) conclude Disney and actress Gina Carano formed an expressive association, the burden prong might seem more difficult. Although Carano’s speech took place outside of work, members of the public sought a response from the company, perhaps suggesting its responsibility for Carano’s extramural views.³⁵⁵ One might think that as an actress, she was personally identified with the Mandalorian show such that her speech impacted the show’s message.³⁵⁶ And, certainly, some stars so represent a franchise that their speech may be confused with that of the studio. Here, Disney made clear in public statements that Carano did not speak for it. Nor did she hold any policymaking position. One might be sympathetic to Disney’s business reasons for the firing—consumers might boycott the company or the show—or perhaps skeptical of California’s labor law. But granting Disney a constitutional right to override state law would mean that any company faced with reputational loss for employees’ extramural speech must prevail.³⁵⁷ And Disney retains ample ability to disavow its employees’ speech and to convey that state law prevents firing employees for political speech.

C. The Workplace as the Core of Regulatory Power

Our analysis also illuminates the countervailing state interests in employment regulation. Even if some of these organizations are expressive and forcing them to retain a particular employee undermines their message, there are powerful reasons to maintain the integrity of employment laws. Allowing employers to claim constitutional freedom from civil rights laws will prove detrimental to labor markets; individual workers; and civic, political, and religious groups.

In contrast, the Second Circuit seemed to see employer exemptions from antidiscrimination law as harmless. In its analysis, exemptions tend to foster alignment between (some) employers and their employees, with any effect limited to job applicants.³⁵⁸ But this relatively benign story overlooks the fact that employer discrimination harms workers and distorts labor markets. It wrongly assumes that most affected workers will be job applicants and ignores that current or former employees—the groups most likely to invoke antidiscrimination law³⁵⁹—will face severe repercussions.

Starting at the market level, constitutional exemptions for employers would damage the regulatory structure of work law. The law regulates employment as a system for distributing material benefits, instead of targeting the threat that any particular employer poses to workers. Courts have rightly been sensitive to the anticompetitive risks of employer constitutional or statutory exemptions.³⁶⁰ In Tony & Susan Alamo Foundation, for example, the Supreme Court noted that “exceptions to coverage would affect many more people than those workers directly at issue in this case and would be likely to exert a general downward pressure on wages in competing businesses.”³⁶¹

Exemptions from antidiscrimination law could disadvantage entire groups in local labor markets. Where employers claim an expressive right to discriminate based on characteristics protected by Title VII—as CBS did in Beneker—the impact is obvious. But employers’ exclusion of workers for nonconformity with religion-based behavioral rules will also have a disparate impact. Policing sexual conduct, for example, is likely to fall most heavily on women, LGBTQ+ people, and racial and ethnic minorities.³⁶²

This “sorting” could impact society beyond the labor market. As discussed in Section III.C., workplaces can facilitate bridge-building between employees who are different from each other, creating socially valuable ties. When employers use expressive association to bring about ideological and social conformity at work, it may create stronger intracommunity ties at a cost to broader social cohesion. Employees who begin to question their employers’ values may find that the costs of dissent—itself a constitutional value at the core of expressive association—are too high.

Even if expressive association were somehow limited to nonprofit workplaces (i.e., the workplaces that one might think are likeliest to be mission-oriented and thus expressive), these effects would still be significant. Nonprofits employ the third-largest workforce of any U.S. industry—just north of one out of ten workers—rivaling manufacturing.³⁶³ They hire a significant share of workers in social assistance (41%) and in health services (43%), including 84% of private employment in hospitals.³⁶⁴ Nonprofits also dominate education, providing nearly three-quarters of jobs, including 84% of those in private elementary and secondary education.³⁶⁵ Consider, for example, that Catholic K-12 schools alone employ more than 150,000 teachers, and many nonteaching employees beyond these.³⁶⁶

Moreover, it is important to recognize that not all nonprofits are small. Data show that “a nonprofit establishment employs more workers, on average, than does a for-profit establishment.”³⁶⁷ The new wave of expressive association cases includes entire Catholic archdioceses claiming freedom from employment regulation.³⁶⁸ Although they have not (yet) raised such claims, four of the ten largest hospital systems in the country are affiliated with the Catholic Church.³⁶⁹ Some crisis pregnancy centers are parts of multi-million-dollar chains.³⁷⁰ While the term nonprofit may conjure images of small soup kitchens, in reality, they are often large commercial enterprises.

Nor have expressive association claims been limited to nonprofit employers. Braidwood Management Inc. is a for-profit management company and successfully invoked an expressive association right to discriminate against LGBTQ+ employees.³⁷¹ Among employers asserting similar arguments, CBS is part of a company with a market capitalization north of $16 billion, and Disney has a market capitalization of more than $200 billion.³⁷² If, as the Braidwood court would have it, an employer becomes an expressive association simply by objecting to legal regulation, claims will proliferate. Indeed, the alacrity with which major media companies have embraced the right of expressive association suggests its wide appeal.

When we shift focus from labor markets to individual workers, we can discern additional harms. Employees will face discrimination and suffer the financial hardship and psychological distress of job loss.³⁷³ A worker who has been fired may have a hard time finding a new job. These difficulties will be exacerbated if unemployment is high, their previous employer is the largest in town, or many employers in the geographic area hold the same beliefs.³⁷⁴ And many employees will not be able to move on when they discover their employer has views that govern their personal lives. Numerous studies show that labor markets exhibit uniquely “high switching costs and search frictions” and that workers’ individual needs tend to “limit the geographical and work scope of the jobs that are competitive substitutes.”³⁷⁵ Employees who decide that they cannot risk losing their jobs may be effectively coerced into conforming their family lives or reproductive decisions to the religious views of their employer.

If such arguments gain further traction, employees would be all but required to identify with their employer and its distinctive worldview. Some commentators have thought that this sort of development might be a good thing: If employees identify more deeply with the mission or objectives of their employers, then perhaps they will experience greater satisfaction at work.³⁷⁶

But deep identification with one’s current employer and its present objectives can pose dangers to employees’ well-being. Employers benefit when they engender deep loyalty without owing any in return. Convincing workers that their ties are communal or family-like makes it “easier—that is to say also cheaper”—to retain employees.³⁷⁷ Employers can leverage employees’ commitments in order to oppose unionization or demand longer hours of work for lower pay.³⁷⁸

Equally important, conditions of work almost inevitably will change. Employers will restructure jobs or make layoffs—often without worker input or notice. These decisions will be especially destabilizing if employees see their employer as integral to their personhood. Expressive association will erode employees’ abilities to separate themselves from their work.

A world of employer association would diminish the liberty and privacy of employees in profound ways. Employers have claimed constitutional freedom to fire people based on their decisions about reproductive healthcare, their choice of romantic partners, and their engagement in premarital sex.³⁷⁹ The growing number of statutory protections for these decisions reflects a widely shared intuition that employers ought to stay out of their employees’ private lives.

If employers can make decisions based on employees’ family or intimate choices, they will have an incentive to surveil those choices. The prospect evokes a technologically enhanced resurgence of Henry Ford’s infamous program of social control. To obtain better pay, many Ford employees agreed to align their lives with Ford’s own moral and religious values, with compliance monitored by the investigators of Ford’s Sociological Department.³⁸⁰ The results were exactly what Ford hoped: Employees made decisions about whether and when to marry, whether their wives would work for pay, and where they would live according to Ford’s preferences.³⁸¹

This prospect should scare even those most friendly to employer power. Employer domination may be tolerable during working hours, but it should not follow employees home to their families. To have meaningful abilities to form their own religious, political, civic, and intimate associations, workers must have time and space free from their bosses’ control.³⁸²

***

In short, work rarely implicates rights of expressive association. Employment usually does not signal ideological agreement of managers and employees. The presence of any particular employee, moreover, is unlikely to seriously burden an employer’s ability to communicate. And even if some employer does qualify as an expressive association and forcing the employer to retain a particular employee would undermine its message, the employer’s interests must be weighed against the integrity of employment laws that structure labor markets, safeguard workers, and enable our participation in religious, political, and civic groups.

Conclusion

Across the country, employers are claiming rights of expressive association against workplace regulation. Increasingly, they are winning. Perhaps the most alarming aspect of this trend is its unbounded quality. Free exercise exemptions may threaten the welfare state, including access to healthcare. But only so many employers can plausibly assume a religious identity. Free speech claims may also impede collective self-government, but their power is largely confined to the realm of speech regulations. An inflated right of expressive association, however, stretches wide. Cases in the last five years have come from for-profit and nonprofit companies, large and small enterprises, and secular and religious actors. And they target regulations governing not speech but the ordinary operation of business and the administration of the labor force.

In this Article, we have demonstrated that the phenomenon of employer expressive association is deeply at odds with long-standing First Amendment principles. We have also made a comprehensive case for holding the line between membership and employment in constitutional doctrine. Doing so is critical to securing the basic rights of employees, the well-being of those who depend on them, and the integrity of our system of industrial government. Unmoored from membership organizations, the right of expressive association has virtually no limiting principle.

*Crillon C. Payne II Professor of Health Law at the University of Texas School of Law.

** Vinson & Elkins Professor at the University of Houston Law Center.

† Gray, Plant, Mooty, Mooty & Bennett Professor of Law at the University of Minnesota Law School. We thank participants in the George Washington University Law School faculty workshop; Loyola University Chicago School of Law faculty workshop; University of Iowa College of Law faculty workshop; University of Minnesota Law School Women at Work Conference; Yale Law School Freedom of Expression Scholars Conference; Nootbaar Institute on Law, Religion, and Ethics Workshop at Pepperdine Caruso School of Law; University of Washington School of Law Toni Rembe Lecture; and Yale Law School Free Speech in Crisis & the Limits of the First Amendment Conference. For comments, we thank Helen Norton, Alan Chen, Marcia McCormick, Fred Gedicks, Naomi Schoenbaum, Erik Encarnacion, Daniel Browning, Jacob Eisler, Cynthia Estlund, Katie Eyer, Andy Koppelman, Louise Melling, Nelson Tebbe, Deborah Dinner, David Noll, Laura Portuondo, and Elizabeth Pollman. We are grateful for Brandon Charnov’s excellent research assistance.