When Political Discourse Leads to Dismissal
Conventional wisdom used to dictate that employers should refrain from taking political positions, and employees’ personal political views had no place in the workplace. The widespread use of social media has changed this calculus today. While technically not part of an employee’s workplace behavior, employees’ personal social media accounts are often public and available for all colleagues to view. This means when an employee speaks out on these platforms, they are also communicating to their co-workers. When an employee’s viewpoints or statements are construed as offensive, harassing or discriminatory, employers are increasingly taking action by disciplining or even terminating the offending employee. Whether such actions could land the employer in legal trouble is an increasingly perilous minefield.
While the First Amendment protects most speech from regulation by the government (with certain exceptions, such as speech that imminently incites violence), its protections do not apply to private institutions, such as employers in the private sector. Thus, while individuals generally have a Constitutional right to peacefully express their views without government interference, private employees do not have the equivalent right in the workplace. A private sector employer can fire an employee in response to the employee’s political activities or other speech without violating the employee’s First Amendment rights.
However, some states have enacted laws that afford protections to employees who engage in lawful off-duty conduct, which includes political activity. Hence, for example, an employer in New York was sued after firing an employee for his social media postings.
NYU Langone Health terminated Dr. Benjamin Neel from his position as the director of its cancer center for reposting anti-Hamas messages on social media that included caricatures of Arab people, as well as a message that questioned Hamas’s reporting of the death toll in Gaza. See Neel v. New York University, Index No. 655743/2023, NYSCEF No. 1 (Sup. Ct. N.Y. Cnty. Nov. 16, 2023). The hospital contended that these public posts violated its code of ethics and social media policy, and that Dr. Neel’s actions could damage the reputation of the hospital.
Neel filed suit against the hospital, claiming his termination was an attempt to look even-handed in its handling of commentary on the Middle East conflict, after another doctor was terminated for posting a message on social media that was interpreted as a defense of the Oct. 7 Hamas attack.
Neel contended that the termination violated his rights under New York Labor Law §201-d, which protects employees’ political activities, defined as “running for public office, campaigning for a candidate for public office, or participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.” To be protected under New York Labor Law §201-d, such activities must be legal, take place outside working hours and off the employer’s premises, and not utilize the employer’s equipment. He also contended that his termination was discriminatory under the New York State Human Rights Law and New York City Human Rights Law, because the posts in question were in furtherance of his Jewish identity.
Thus, when employers take action based on political discourse, they must also consider how such discourse aligns with an employee’s identity, and how such views are being treated in comparison with those of a different group.
Similarly, when Candice Mumma, a conservative Christian woman employed in Connecticut, was fired after posting a controversial meme on her personal Facebook page, Mumma sued her employer for violating her rights under Section 31-51q of the Connecticut General Statutes. See Mumma v. Pathway Vet Alliance, 648 F. Supp. 3d 373 (D. Conn. 2023).
Section 31-51 q prohibits employers from discharging or disciplining employees for the exercise of their rights under the First Amendment and similar provisions in the state’s constitution, “provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”
The social media post in question had included the heading, “No Wonder Liberals Are So Confused,” under which appeared photographs of eight different political and cultural figures, each with a single-word caption such as the word “Indian” under a photograph of Senator Elizabeth Warren and the word “Woman” under a photograph of Caitlyn Jenner. Mumma’s employer became aware of the meme and terminated her employment, after which, Mumma sued.
In Mumma’s case, the employer’s motion for summary judgment was rejected as the court determined there were issues of material fact as to the reason for the termination. The employer had argued that Mumma’s employment was terminated because her social media post potentially violated anti-harassment laws, violated company policy and negatively impacted company operations. The employer also contended that Mumma was terminated due to concerns about the posting’s negative impact on the employer’s reputation and relationships within her team at work, and because of “actual complaints from co-workers.” Mumma, 648 F. Supp. at 393.
However, the court noted that none of the complaining co-workers had specifically requested Mumma be terminated as a result of her posts, and depositions of key employees indicated other reasons for the termination, including that Mumma was terminated because she had “posted something to social media that was offensive and derogatory to multiple groups of people” and that she was terminated because the post was “offensive and did not comply with our employee handbook standards, our values, and showed disregard for diversity, equity, and inclusion.”
In considering these and other reasons given for the termination, the court concluded that the “common thread … is that the company regarded Mumma’s speech as ‘offensive,’ and while a reasonable jury could infer that this is a form of shorthand for concern about the disruption that might flow from an offensive meme, it could also conclude on the current record that [the employer] was simply offended by the content of the speech.”
In light of the factual disputes regarding the basis for the termination, the court declined to grant summary judgment on Mumma’s free speech claims against her employer under Section 31-51q of the Connecticut General Statutes.
In these increasingly polarized times, where many individuals are compelled to use social media and other public platforms to express their political views, the interaction of political speech and the workplace is poised to grow increasingly complex. Employers must toe the line between protected employee activity and protecting corporate reputations.
The reactions of the courts and legislatures thus far will be instructive as the country enters the contentious 2024 presidential election cycle. Employers must be wary of overstepping boundaries with employees, and employees must be aware that job protection in the face of controversial public speech is not a Constitutional right.
Reprinted with permission from the February 09, 2024 edition of the New York Law Journal © 2024 ALM Global Properties, LLC. All rights reserved.
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