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Keeping Politics Out of the Office: First Amendment Considerations for Public Employers In the Age of Social Media

10/13/20

By: Taryn Haumann

As we approach another hotly contested presidential election, Americans are frequently turning to social media to share their political ideologies or engage in debates. In the weeks leading up to the election, as well as the days immediately following, employers could see conflict arise in the workplace relating to their employees’ postings on social media. For public employers, the decision on how to handle these situations becomes even more complicated due to the employees’ First Amendment protections.

On October 6, 2020, a Sixth Circuit three-judge panel in Bennett v. Metropolitan Government of Nashville, No. 19-5818, weighed in on this scenario. In Bennett, the court held that a public employee’s use of a racial slur when discussing politics on Facebook was not sufficiently protected by the First Amendment, and the speech did not outweigh the government agency’s interest in having an efficient workplace and effectively serving the public.

The court’s ruling overturned the U.S. District Court’s determination that a 911 operator’s use of a racial slur when discussing the groups of voters who supported Donald Trump was protected political speech that outweighed the government’s interest in policing her conduct. Following the 2016 presidential election, the employee posted a response to a comment on her public Facebook page celebrating Trump’s victory. The employee, who was White, used a racist slur historically used to demean Black people, while also stating that “rednecks” and “[L]atinos” voted for Trump. Following the employee’s comments, her coworkers and members of the public complained to the Metropolitan Government of Nashville (“Nashville”).  Following paid administrative leave and a due process hearing, the employee was terminated, and she subsequently sued Nashville for retaliation under the First Amendment. 

The Sixth Circuit applied the balancing test outlined by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968) to determine whether the employee’s interests in free speech outweighed the government employer’s interest in efficiency in the workplace. In deciding the employee’s comment was not sufficiently protected speech, the court considered the following factors: whether the statement disrupts harmony among co-workers or impairs supervisory discipline, has a determinantal impact on close working relationships, impedes the performance of the employee’s duties or the workplace’s general operation, or undermines the employer’s mission.

In short, the employee’s derogatory comments caused an uproar in the workplace, and the district court failed to fully consider the importance of harmonious relationships in the workplace. The employee’s post caused “substantial” disruption and increased stress levels across the entire agency. The employer even brought in counselors to address the tension. The court recognized the employer had an undeniable interest in maintaining an effective workplace, promoting employee harmony, and efficiently serving the public, which ultimately outweighed the employee’s interest in using racially offensive language in a Facebook comment.

Whether you are a public or private employer, it is important to remind your employees to be cognizant of what they post on social media—particularly if their profiles are public. For employers, one of the best tools is to include a social media policy in your employee handbook that adequately addresses the complexities of social media in the modern workplace. For instance, it can be helpful for an employee to decline to identify herself as an employee of your organization, or for the employee to post a “disclaimer” that her opinions or views expressed are those of the employee and not the employer. However, as seen in Bennett, certain postings can still cause major disruption in the workplace and negatively reflect on the employer.

If you have questions about an employee’s social media presence, or would like to discuss implementing social media policies at your place of business, please contact Taryn Haumann directly at [email protected].