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2016 presidential election dynamics in the workplace: Free speech? ‘You’re fired’

published in McAfee & Taft EmployerLINC | October 12, 2016

By Courtney Bru

None of us are immune from this year’s presidential election dynamics. Disrespect and name-calling seem more prevalent than policy discussions. The election is highly polarizing, potentially pitting employee against employee.

In the midst of it all, employees are often misinformed regarding their “free speech rights” in the workplace. A recent instance from Georgia should serve as an example.

A paraprofessional at a Georgia public elementary school recently took to Facebook to share her personal thoughts and opinions regarding Michelle Obama. The 27-year employee called Ms. Obama a “gorilla” several times and stated she is a “disgrace to America!” The same woman had demonstrated a pattern of insensitive and inappropriate postings. She had allegedly previously posted a comment stating she was glad she did not have a student named “Tyrrevius” in her class because “it would have taken the entire year to teach him how to write his name.”

These postings immediately generated controversy. Numerous other Facebook users commented that they felt the posts were inappropriate and encouraged others to file complaints with the school superintendent. The school district conducted an investigation and ultimately terminated the employee. In a statement, a school spokesperson noted that “racism and discrimination are not tolerated in our school district,” which is comprised of approximately 3 percent black students.

With just weeks to go before the big vote, now is an appropriate time for a brief refresher regarding speech rights in the workplace, including political speech. The rights of employees vary widely depending on whether they are employed by a public or private employer.

Public employees (including governmental employees) have limited speech rights in the workplace. A series of opinions by the U.S. Supreme Court has resulted in a set of established guidelines. Public employers may discipline employees whose speech adversely impacts the integrity or functions of the public employer or adversely affects morale. Public employees may speak out on matters of public concern, but must also demonstrate that their free-speech interests outweigh these interests of their public employers. Public employers must “arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563 (1968). When speech carries little value, is discriminatory or obscene, public employers can likely discipline the speaker.

By contrast, persons employed by private employers generally have no right to “free speech” in the workplace. Private employers are generally free to take disciplinary action on the basis of speech, provided they treat all similarly-situated employees alike and do not act in a discriminatory manner. (Private sector employees may, however, discuss the terms and conditions of their employment “and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” pursuant to Section 7 of the National Labor Relations Act.)

Employers should not ignore speech that may occur outside of the workplace but that has a detrimental effect on employees. Such speech may trigger obligations under anti-discrimination, anti-harassment and anti-retaliation policies. You must consider whether disciplinary action is warranted, even if the employee is simply expressing their desire to “Make America Great Again!” or convey that “I’m With Her.”