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Is Pro-Intelligent Design Speech During Work Hours "Not Included" in Protections Against Discrimination?

In a recent post I explained why David Coppedge is alleging religious discrimination in his lawsuit against NASA's Jet Propulsion Laboratory (JPL) for shutting down his pro-intelligent design speech, even though intelligent design (ID) is science, not religion. In the San Gabriel Valley Tribune, Professor Gary Williams of Loyola Law School (and former head of the Southern California ACLU) argued that even if ID is religion (or, as in Coppedge's case, ID is labeled religion by JPL), that Coppedge's lawsuit is weak:

Certain kinds of religious activity are protected if they are not intrusive - such as wearing certain religious garb - but speech during work hours is not included, he said.

So even if intelligent design is viewed as a religious belief, employers have the right to restrict what their employees discuss in a work context, Williams said.

"If an employee is talking about anything in the workplace that is not related to work, the employer is entitled to say that `I don't want you to do this,"' Williams said. "You're not protected."

(Gary Williams, quoted in San Gabriel Valley Tribune, "Intelligent Design proponent who works at JPL says he experienced religious discrimination")

Mr. Williams is of course correct that employers are often permitted to restrict employee speech in the workplace, but perhaps he is not aware that:
(1) part of taxpayer funded JPL's mission with NASA is to investigate origins making ID (as Mr. Williams puts it) wholly "related to work" at JPL;

(2) JPL had no prior policy prohibiting any form of speech regarding ID nor a general policy prohibiting speech they deemed religious; and

(3) JPL employees have in fact been permitted to express ANTI-ID views within the JPL workplace.

But then when Coppedge expressed a pro-ID view, he was sanctioned and demoted on that very basis, essentially punished arbitrarily for violating a policy that never existed.

Coppedge's complaint observes that the "terms, conditions, or privileges of employment" are protected from religious discrimination under California's Fair Employment and Housing Act (FEHA)--and presumably this includes the right to talk to co-workers about your personal views on topics relevant to the workplace (especially where there's no policy against such discussions) without being demoted or harassed. As the complaint says:

FEHA makes it an unlawful employment practice for an employer to discriminate against an employee "in terms, conditions, or privileges of employment" on the basis of the employee's religion. The California Constitution, Art. 1, §2 (a) provides that "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right." Art 1, §4 provides that "Free exercise and enjoyment of religion without discrimination or preference are guaranteed."

[...]

Defendants violated Plaintiff's civil rights and violated Government Code §§ 12940, et seq., when they demoted him on the declared and perceived belief and pretext that he was engaged in religious activity by discussing ID and handing out DVDs concerning ID. Said demotion consisted on the reclassification of Plaintiff's title and job duties to remove him of the privileges associated with being a Team Lead SA.

If an employer has a blanket policy that prohibits all religious speech in the workplace, perhaps actions like those of JPL would be legally permissible. But as far as I know, there's no general policy at JPL prohibiting any form of religious speech. There was certainly no policy prohibiting the discussion of intelligent design, whether for or against ID. In fact, as noted, JPL has otherwise extended its employees the "privilege" to openly advocate ANTI-ID views within the JPL workplace without ANY SANCTION to their "terms" or "conditions" of employment whatsoever. It's perfectly fine if JPL employees want to attack ID, but JPL cannot then suddenly start punishing those who support ID.

Surely Mr. Williams is not saying that an employee expressing a particular viewpoint on a matter relevant to the workplace--in a non-disruptive fashion--can be punished when there's no policy against that speech and other employees expressing contrary views about the same topic are granted free speech. But this is exactly what happened at JPL. It's called disparate treatment, and when the employee is penalized on the basis of what the employer labels "religious" speech, it's called religious discrimination.

But then again, as I'll explain in a subsequent post, I wouldn't put it past ACLU to advocate for disparate and discriminatory treatment of the pro-ID viewpoint.