While serving as Atlanta's fire chief, Kelvin Cochran wrote a book in which he described homosexuality as "vile, vulgar, and inappropriate." The book (for those scoring at home, it's entitled Who Told You That You Were Naked?) is about Cochran's religious beliefs; among other things, he believes that homosexuality is akin to pedophilia, bestiality, and other types of "sexual perversion." Cochran distributed the book to several of his employees, including employees who didn't ask for it.
This posed a problem for the City of Atlanta, which understandably wants to recruit and retain diverse employees who are diverse responsive to the city's diverse citizens. So in response to a complaint from a Fire Department employee, Cochran was suspended, and then—after he refused to cooperate with the investigation or enroll in sensitivity training—he was fired. In explaining the termination, Atlanta's mayor stated that Cochran's conduct "undermine[d] his ability to effectively manage a large, diverse workforce."
Cochran responded by suing the city and its mayor, alleging that the termination violated the freedom of speech, freedom of religion, and other constitutional rights. He is represented by Alliance Defending Freedom, which lately seems to specialize in defending antigay government officials or business owners who claim a legal right to discriminate against their citizens, customers, or employees.
The rules governing expression by government employees are complicated. Although citizens don't forfeit their freedom of speech and religion when they take government jobs, the government also has the latitude to ensure that its employees don't create a hostile environment for their colleagues or otherwise undermine their agencies' interests—including their interests in attracting and retaining a diverse workforce that is responsive to the city's diverse population. Indeed, Atlanta has more gay and lesbian people than any other city in the South, and last year the city received a perfect score from Human Rights Campaign's Municipal Equality Index. A department head who publicly compares LGBT residents and employees to pedophiles—and who distributes his antigay writings, unsolicited, to his employees—is likely to undermine the city's interests.
Nevertheless, on Wednesday, a federal trial court largely denied the city's motion to throw out his lawsuit. The court didn't say that Cochran should win his case, however, only that it should proceed to the fact-finding stage. Wednesday's decision came at the "pleading stage,'" which meant that the court was bound by the allegations in Cochran's complaint, and the city wasn't yet allowed to present evidence rebutting Cochran's allegations. That is no small matter, because Cochran alleged—counterintuitively—that his conduct "did not threaten the City's ability to administer public services and was not likely to do so." The court, at this stage in the case, was required to accept Cochran's allegation at face value, no matter how skeptical the court might have been of its accuracy. And while the court felt that it couldn't dismiss Cochran's lawsuit at this point in time, the court also recognized that "the factual development of this case may warrant a different conclusion."
The next time the case gets before the court, the city will have had the opportunity to present evidence of the importance of maintaining a diverse department and the manner in which Cochran's conduct undermined these important goals. That evidence is likely to make Cochran's case much, much weaker. Stay tuned.
Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United.