Advice From the Pros

Does Your Right to Free Speech Extend to the Workplace?

Learn why the First Amendment doesn’t protect you from being fired

Most employees think they know the basics of illegal or unjust termination. For example, being fired because you’re a person of color, a woman, a muslim or a Nazi is illegal, right? Wrong.

One of these things is not like the other, and ‘unfortunately’ being a white supremacist could leave you jobless. But wait, this is America, I have Freedom of speech! Yes, you do, and you’ll still have it as you revamp your resume to look for a new job.

It’s time you learned your rights. Read on to find out just how speaking your mind, could be a just cause for being let go.

Most of us know the First Amendment means we have the right to say pretty much whatever we want as long as it’s not obscene or does not incite harm. The First Amendment states, in relevant part, that: “Congress shall make no law…abridging freedom of speech.”

Supreme Court ruling Cohen v. California further asserted that, “certain offensive words and phrases to convey political messages,” are also protected.

Yet, many continue to mistakenly believe that their right to freedom of speech also extends to the workplace. Free speech only applies when the government is trying to infringe upon it.

Employers are governed by several laws in regards to termination. Thanks to Title VII of the Civil Rights Act, most employers are prohibited from terminating someone because of their race, gender, national origin, disability, religion, genetic information or age (if the employee is 40 or more years old).

The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII, but it is important to note that not all employers are bound by the law, such as private organizations with 14 employees or less.

Other federal discrimination acts that govern termination include the Age Discrimination in Employment Act (ADEA), Americans With Disabilities Act (ADA), Equal Pay Act, Immigration Reform and Control Act (IRCA), Civil Rights Act of 1866 (Section 1981), Genetic Information Nondiscrimination Act (GINA).

None of these laws protect employees from termination due to political, organizational affiliation or disseminating hate speech. Just as the government can not enforce limits on your speech, nor can they force an employer to retain someone.

Recently a Google engineer disseminated an internal memo, that caused an uproar from those who interpreted the letter as suggesting that women were inferior to men at engineering.

The engineer was fired from Google and although many have come to his defense, Google CEO Sundar Pichai defended the termination in a response memo. Pichai stated that “portions of the [the engineer’s] memo violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace.”

But what about when you’re not at work? There are many examples of employers firing employees due to their actions or statements outside of the workplace.

Like in the case of a man fired from his hot dog job after participating in an alt-right, white supremacy march in Charlottesville, Virginia.

A Yale University Dean resigned this past June due to serious pressure from the Yale community after her offensive reviews on Yelp were brought to light.

An adjunct professor was fired from Essex County College in Newark, New Jersey, after appearing on Tucker Carlson’s show to defend a Black Lives Matter group’s decision to host a blacks-only Memorial Day celebration in New York City.

A former chief executive of Mozilla was forced to resign in 2014 after a public backlash against his stance opposing same-sex marriage.

In 2013, a public relations representative was infamously fired after tweeting about contracting AIDs during her trip to Africa.

While a small number of states include statutes that prohibit employee termination due to employee actions deemed lawful acts, many companies have a code of conduct or include morality clauses in employee contracts that you may be violating should you move forward.

Before you decide to post what could be interpreted as a divisive message, or participate in what could be considered an alienating or hostile event or organization, you should thoroughly understand your company’s stance on this behavior.

Even if your company allows this kind of rhetoric outside of business hours, you should think about how this will affect your working relationships with your colleagues and opportunities for future employment.

You don’t want to learn the hard way, that free speech isn’t actually all that free.

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