Imagine showing up for your day job one Friday afternoon and being summoned by your boss for a "chat." When you arrive at his or her office, you are handed a stack of pictures of you downloaded from the adult Website that nobody was supposed to know about. Your employer then hands you a pink slip, and tells you to immediately clean out your desk. Welcome to the world of workplace discrimination – but this kind of discrimination is usually not against the law.
This scenario is becoming more and more common these days; and most employees are out of luck because of the "Employment at Will" doctrine, a legal principle that essentially allows employers to terminate workers for any reason, or no reason whatsoever. However, one fired employee, by the name of Marcie Betts, stood up and fought back, and recently won the right to job reinstatement; on First Amendment grounds. This is her story:
Marcie Betts was a prison guard, or "corrections officer" as they now prefer to be called. She worked at Roxbury Correctional Institution in Hagerstown, Maryland, and was an exemplary probationary employee. Before she was hired, she sold some nude pictures of herself to an adult Website called BurningAngel.com.
During the interview process with the Division of Corrections, she was never asked whether she had been involved in adult entertainment or nude modeling, although an extensive background investigation was conducted and plenty of opportunity existed for such inquiry. She was hired in November, 2003, and after some training time, reported for work the middle of January, 2003. She immediately received positive feedback from her superiors and co-workers about her job performance.
Rumors Lead to Investigation
However, it was not long before rumors of her involvement with the adult Website began to surface, to her surprise and dismay. After initially attempting to shrug off the rumors, the Warden ultimately confronted her with evidence of her participation in the Website.
An investigation was launched, during which it was uncovered that an inmate almost obtained a magazine containing an image of Ms. Betts. As it turns out, this inmate had a subscription to a magazine entitled Tabu Tattoo, wherein a single image of Marcie Betts appeared. Inmates at Roxbury Correctional Institute are allowed to receive sexually explicit materials; however, this magazine was intercepted before the inmate ever received it, because it contained a picture of a corrections officer, which made it contraband. Importantly, inmates there are not permitted to access the Internet at this particular institution. Therefore, there was no indication that any inmate ever actually accessed or viewed any erotic image of Marcie Betts – either online or in any other medium.
Investigation Leads to Termination
Nonetheless, Ms. Betts was terminated on January 29, 2003, as a result of her pre-employment nude modeling and involvement with the Website. Although she was not represented by counsel at that point, the firing certainly seemed unfair, and possibly unconstitutional, at least to her.
In upholding the firing during the initial administrative review process, a hearing officer determined that "some" of the images justifying the termination were not protected by the First Amendment.
Parenthetically, none of the subject images were ever declared to be obscene by any court or jury, and therefore this finding defied logic. At that point, Ms. Betts retained the author as lead counsel, and Jon Katz, Esq., as local counsel, to defend her interests and seek reinstatement as a corrections officer with the Division of Corrections. She also set up a legal defense fund website, www.FightForOurRights.com, to inform the public about this significant battle. Importantly, as a public employee, she enjoyed a Fifth Amendment property right in her employment, unlike most private sector employees. Also, given the reasons asserted for the termination, substantial Free Speech interests were at stake as well.
Read about the outcome of this case…
Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou & DeWitt, with offices in Orlando, Los Angeles, and San Diego. Mr. Walters represents clients involved in all aspects of adult media. Nothing in this article constitutes legal advice. Please contact your personal attorney with specific legal questions. Mr. Walters can be reached at Larry@LawrenceWalters.com, through his website: www.FirstAmendment.com or via AOL Screen Name: “Webattorney.”
