A white male employee has a confrontation with a Hispanic female co-worker in a deserted corridor. He grabs her by the lapel, shakes her, and tells her he is ‘tired of this Hispanic s—: us white guys are tired of being looked over.’ Clear grounds for termination? His employer thought so. But in a surprising new decision, a California appellate court ruled the worker’s outburst was protected free speech. Although the case involves a public sector employer, it is of interest to private employers as well.
Hispanic Worker Given Preference
The dispute involved Johnny Wallace, who is white, and Genevieve Picone, who is Hispanic. Both worked as prison guards for the California Department of Corrections at the Deuel Vocational Institution in Tracy. Picone had received a low score on the sergeant’s examination, but she was assigned as a temporary sergeant anyway as an affirmative action measure.
Picone was also awarded a coveted ‘second shift’ position that Wallace had been seeking for some time. Wallace frequently told co-workers she was a poor performer who should never have been promoted.
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Hostile Confrontation
Wallace’s comments got back to Picone and she asked to speak to him in private. They met in an empty hallway and Picone asked him to stop making negative comments about her. Wallace lost his temper, slapped the wall, and voiced his frustration with affirmative action. He also said he was ‘sick and tired of hearing about poor f—— Picone getting shafted.’ Wallace then grabbed Picone’s lapel and shook her, saying, ‘Do you understand what I’m feeling? We’re sick and tired of it.’
Outburst Is Protected
Wallace was fired for several reasons, including discourteous treatment of another employee and unlawful discrimination. He appealed the termination to the State Personnel Board, which ruled his statements were protected speech because they involved affirmative action, a matter of public concern. The Board reduced the dismissal to a 30-day suspension.
The case eventually made its way to the California Court of Appeal, which upheld the Board’s ruling. The court noted that a public employee’s right to free speech must be balanced against the employer’s interest in maintaining a safe and efficient workplace. In a somewhat surprising conclusion, the court ruled the prison had suffered no harm from Wallace’s outburst.
Nevertheless, some justices on the court attacked the decision as signaling an ‘open season’ on minority workers, in which racist epithets could be hurled under the guise of free speech.
Free Speech Guidelines
Although the California Supreme Court may still have the last word on this controversy, the case highlights the difficulty employers-especially public employers-can face in balancing employees’ rights to free speech with the need to maintain a safe, non-discriminatory and productive workforce. Here are two guidelines for dealing with this thorny issue:
- Private employers have more rights in controlling the workplace. Private sector employees typically don’t have ‘free speech’ rights at work. Still, even private employers can’t interfere with an employee’s outside political activities or fire someone because of their political beliefs. And ‘politics’ is not limited to traditional election campaigns, but may extend to social issues such as abortion rights, environmental causes or affirmative action. You can take action, however, if an employee’s expression of political views becomes disruptive to the work environment.
- Written policies can limit political discussions. As evident from the Department of Corrections case, public employers are more restricted in their ability to limit political discourse at work. Generally, public employees who express political views can be disciplined only when necessary to maintain an orderly workplace or to protect other workers’ rights.
It’s a good idea for public and private employers alike to have a policy spelling out in advance exactly what types of political activity are permitted at work. But make sure it’s consistently enforced and you don’t show favoritism. For example, do not prohibit employees from collecting money for political campaigns if you allow workers to solicit funds for charitable organizations.