Your Employees Don’t Have Free Speech Rights at Work — Or Do They??? Part I

Your employee just mouthed off in an expletive-filled rant to a supervisor for the umpteenth time. You have counseled the employee and even issued written warnings. Now, you are ready to fire the employee. It’s a righteous termination, isn’t it?

An executive of a large, well-known company takes to social media and makes comments about hotly debated political issues that are either opposed to the company’s beliefs and values or that many find offensive. The company wants to suspend the executive.

What happens if these employers discipline their respective employees? Don’t they have a right to do so? ESPN anchor Sage Steele in her recently-filed lawsuit against ESPN says “No”.  Let’s have a look at that, shall we?

Last month, ESPN Anchor Sage Steele sued ESPN and its parent company, Disney, over an allegedly retaliatory suspension after comments she made on a podcast that many found offensive. Violation of free speech rights is at the heart of her complaint. She is also alleging that ESPN breached her employment contract.

In the first hypothetical above, an employee may actually be protected under the National Labor Relations Act, which allows virtually all private employees to discuss, comment on, and strive to collaborate to improve or cause their employers to address work conditions.

What about the First Amendment though? Does it allow an employee to say whatever they want, when, and wherever they want? Let’s dig in and see what we find…

OK, so let’s start with the basics. The relevant provisions of the First Amendment of the United States Constitution read as follows:

Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let’s point out the obvious. The First Amendment merely talks about whether Congress can pass laws about what we can and cannot say aloud. It says nothing about whether anyone else can restrict our speech in any way.

The Fourteenth Amendment expands the Bill of Rights’ protections somewhat by prohibiting States from passing laws or doing anything that inhibits individual constitutional rights. At most that would seem to protect public employees (i.e., those working for federal and state government agencies). In fact, in most situations, a private employee can be fired for what s/he says unless s/he can prove that the firing violated federal or state anti-discrimination laws.

So how is it that some private employees who say some seemingly outrageous things can sue their employers — and win?

What about Sage Steele specifically? She made her comments during off-hours, expressing her personal views. She did not do so in her capacity as an ESPN anchor. (OK, technically that is true, but really isn’t that how most people identify her? Accordingly, ESPN’s concerns as to how her comments reflect on them may have some validity. Just sayin’…) Generally, if one engages in otherwise legal activities outside work, an employer can’t take an adverse action against them – unless the activity in some way runs counter to either a contract, the company’s values, reflects poorly on the company, or inhibits the company from furthering its mission.

Here in a nutshell is what went down between Sage Steele and ESPN:

In September 2021, in a podcast with NFL Quarterback Jay Cutler, Ms. Steele said that ESPN’s requirement that all its employees receive a COVID vaccination was “sick” and “scary to me in many ways,” indicating that she only complied to keep her job. Ms. Steele also referenced a conversation with Barbara Walters as to why she identified as biracial rather than Black, like former President Barack Obama, she said it was  “fascinating” that he had chosen to identify as Black despite having been raised by his white mother and grandmother, and said,  “You do you. I’m going to do me.”

In the same podcast, she also made comments that seemed to blame sexism and sexual harassment on women who wear provocative clothing: “When you dress like that, I’m not saying you deserve the gross comments, but you know what you’re doing when you put that outfit on, too,” she said. “We need to be responsible as women, too. We know what we’re doing when we put certain things on.”

Many people took offense at these comments. In response, ESPN removed her from covering certain events she had covered in the past. It did, however, have her cover recent Masters telecasts, and work as the host of an afternoon show. To date, she continues to work as a sports anchor at ESPN. Ms. Steele filed her lawsuit against ESPN last month.

We have established that as a private employee, the First Amendment would not protect her speech. So, what free speech rights would she have then? Here’s the twist: ESPN does business and Ms. Steele works in Connecticut. Why is that important? Connecticut actually has its own free speech law that read as follows:

[a]ny employer…who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3,1 4,2 or 143 of article first of the Constitution of the state, 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, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages.

Let’s come back to that in a moment. Ms. Steele is alleging that ESPN selectively enforced a policy against anchors making political commentary by suspending her and letting other co-workers make political comments without consequences. According to Ms. Steele, she was not only forced to apologize for her comments, but ESPN also suspended her because of the content of her comments.

Neither side has a slam dunk here. Yes, it appears that in fact, ESPN did take action as a result of Ms. Steele’s speech, which occurred during off-hours, off-premises, voicing her own private views on matters of public concern. Given the state statute, that looks bad for ESPN.

For now, our takeaways are the following:

  1. The First Amendment does not stop private employers from disciplining an employee over what they might say;
  2. Don’t stop with federal laws. Check the laws in the state where the employee in question works. In this case, Connecticut is a bit of an outlier with the law in question, but laws do change, and in these times, many states are passing laws with additional protections for employees;
  3. The National Labor Relations Act will often protect an employee’s speech and expressions regarding work conditions.

In the second part of this post (coming soon to theaters near you), we’ll explore Ms. Steele’s claims a bit more, and why neither side exactly has a slam dunk– I’ll give you some more key takeaways, so be on the lookout for Part 2. See you there.

Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, to contact me for a complimentary 20-minute consultation. 

Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?

Watch my television interview on Stop My Crisis with Vivian Gaspar.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ





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