When Can an Employee Be Discharged for Using Racially Charged Language in a Political Social Media Post? The Sixth Circuit Court of Appeals Has Thoughts on the Matter Thumbnail

When Can an Employee Be Discharged for Using Racially Charged Language in a Political Social Media Post? The Sixth Circuit Court of Appeals Has Thoughts on the Matter

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Recently, one federal court of appeals validated an employer’s decision to discharge an employee for posting a racially charged political statement on social media. In particular, the employee (a white Nashville emergency dispatcher) made a Facebook post related to President Trump’s victory following the 2016 election that included racial slurs. The employee subsequently removed the post within 16 hours. However, by that point, the employer had received numerous complaints and initiated an investigation. Ultimately, the employer discharged the employee for violating three rules: 1) her behavior reflected discredit upon the employer 2) her conduct was unbecoming of a Nashville employee and 3) her Facebook profile disclosed that she was a Nashville employee, but failed to include a disclaimer that her views were hers alone and not those of her employer. The employee subsequently sued, claiming the government violated her First Amendment rights.
Upon review, the Court held that the employer’s “interest in maintaining an effective workplace with employee harmony that services the public efficiently outweighs [the employee’s] interest in incidentally using racially offensive language in a Facebook comment.” The Court reached this conclusion based upon several factors.
First, the employee’s speech disrupted the harmony of the office. As a result of the employee’s post, the employer conducted additional diversity training and brought counselors into the office to meet with employees. In addition, the Court also considered that the employee failed to acknowledge any wrongdoing or show remorse. The employee exhibited no concern for her colleague’s feelings, called them hypocrites, and refused to apologize in her disciplinary hearing.
Second, the employee’s speech had a detrimental impact on the close working relationships within the office. Given the stressful nature of the dispatcher job, team dynamics and reliance upon one another played a critical role in the agency’s success. However, given the employee’s comments, some co-workers questioned whether they could rely on her and whether she would fairly assist African Americans in providing dispatch services.
Third, the employee’s comments detracted from the employer’s mission. The employer considered it vital for employees to conduct themselves in an unbiased manner and to demonstrate integrity, reliability, and honesty. Here, the employee described her employer on her Facebook profile and maintained a public profile. Were that not the case, the Court’s analysis may have been different.  Moreover, the employee’s comments exhibited a racial bias and included no disclaimer that the views were hers alone.
For all these reasons, the Court dismissed the employee’s First Amendment claims.  It is important to note that the First Amendment does not apply to private employers. However, the Sixth Circuit Court of Appeals’ jurisdiction covers Ohio, Michigan, Kentucky, and Tennessee. Therefore, particularly for employers in those states, this decision highlights factors that employers may consider when evaluating troublesome employee social media posts. The full decision can be viewed here.

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