by Courtney Bru
None of us were immune from this year’s presidential election dynamics. Disrespect and name-calling have seemed more prevalent than policy discussions. The election was highly polarizing, potentially pitting employee against employee. 
In the midst of it all, employees were often misinformed about their “free speech rights” in the workplace. A recent instance from Georgia should serve as an example.
Facebook needs a dislike button
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 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 didn’t 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 three percent black students.
Know your rights
Even in the immediate aftermath of the big vote, it’s appropriate to take 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 affects the integrity or functions of the employer or adversely affects morale. Public employees may speak out on matters of public concern, but they must also demonstrate that their free-speech interests outweigh the 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 or 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 don’t act in a discriminatory manner. Private-sector employees may, however, discuss the terms and conditions of their employment and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” under Section 7 of the National Labor Relations Act (NLRA).
Speech outside the workplace
Don’t ignore speech that may occur outside the workplace but has a detrimental effect on employees. Such speech may trigger obligations under antidiscrimination, antiharassment, and antiretaliation policies. You must consider whether disciplinary action is warranted, even if employees are simply expressing their desire to “Make America Great Again!” or convey that “I’m With Her.”
Courtney Bru is an attorney with McAfee & Taft, practicing in the firm’s Tulsa, Oklahoma, office. She may be contacted at courtney.bru@mcafeetaft.com.