Your Employee Doesn’t Have Free Speech Rights at Work, or Do They? Part 2

We are back! In the previous post, we were looking at ESPN sports anchor Sage Steele’s lawsuit against ESPN. You can find that post here if you missed it.

We established that ESPN does business Ms. Steele works in Connecticut, where a statute extends First Amendment rights to some private employees. Ms. Steele claimed that ESPN retaliated against her for speaking her mind during a podcast with Jay Cutler by suspending her. She also claims that ESPN breached her contract. At first blush, it looks bad for ESPN, but as I said in the previous post, neither side has a slam dunk.

Let’s pick up at that thread and dig a bit more into the claims and see if we can get any other takeaways.

Let’s start with Connecticut’s free speech law. While it would seem to weigh heavily against ESPN, it has its limits. Ms. Steele has to clear a few hurdles before she can hope to get a jury trial and a nice verdict (or at least a settlement). Let’s take them one at a time.

First: the employee has to be disciplined or discharged for exercising his/her free speech rights. Ms. Steele is not claiming she has been discharged. She can’t make that claim. She still works for ESPN. She is claiming she was suspended. That would qualify as discipline. But wait a minute. Was she disciplined? ESPN did remove her from covering certain events she had covered in the past. At the same time, ESPN still had her covering recent Masters telecasts and hosting an afternoon show.

ESPN might argue that she in fact was not suspended and that it merely did a reshuffling. Is that discipline? ESPN might also argue that given how many people were offended by her comments it merely wanted a cooling-off period. But isn’t that really the same as a suspension? Maybe not. She was still working. She was not told not to report to work. She did continue to work. On the one hand, it does seem that ESPN did take an adverse action against her based on the content of statements she made during the podcast. On the other hand, just because an employee perceives an employer’s action as negative, doesn’t mean it’s discipline within the meaning of the Connecticut statute.

Second: The employee must show that s/he spoke as a private citizen, not as part of his/her official job duties. For example, a senior manager making comments critical of his/her employer does not receive statutory protection if the employer takes issue with the comments unless the comments constitute whistleblowing. Ms. Steele seems to be arguing that she spoke as a private citizen and so is entitled to the statutory protections. She didn’t make the comments while telecasting for ESPN. She didn’t appear on the podcast during her work hours.

Here’s where Ms. Steele’s argument may not hold up, however: She has to show she was commenting on matters of public concern. While COVID vaccinations are a matter of public concern, the comments cannot be about terms and conditions of employment or relate to a personal dispute with the employer. Ms. Steele’s comment about ESPN’s vaccination requirement (specifically that she vehemently disagreed)  would not seem to be protected under this statute.

Wait. Aren’t they protected under the NLRA? Doesn’t the NLRA allow employees to comment on work conditions? Only if it’s done as a concerted activity? What? If Ms. Steele were speaking with or to other employees in an attempt to address work conditions, maybe. It appears, however, that she was expressing her own personal disagreement with ESPN.

OK, but what about her other comments? Those don’t seem to be connected with a personal issue with her employer. Aren’t those protected? Ms. Steele as an ESPN anchor is a public, or arguably a quasi-public figure. To the extent that many people connect her with ESPN, her statements could be perceived as reflecting ESPN’s values. To the extent that the public (or at least many people) found her statements offensive, and might associate those statements with values that ESPN does not promote, ESPN might argue that effectively Ms. Steele was speaking in her capacity as an ESPN employee. Furthermore, one might argue that former President Barack Obama’s choice to identify as Black is not a matter of public concern.  Then there’s her statement that appears to blame women for sexual harassment. Some have said that if it’s not hate speech it comes close. The point is that whether her statements were ones on matters of public concern seems at best to be arguable.

Third: The employee must show that the exercise of free speech rights was a motivating factor in the disciplinary action. ESPN’s decision to remove Ms. Steele from anchoring events she had previously covered was apparently motivated by her comments. Again, though was that removal ‘discipline’ within the meaning of the statute?

Finally: The employee must show that his/her speech did not materially harm his or her job performance or his/her working relationship with the employer. That’s a bit fuzzy here. Her comments offended many, and ESPN can argue it did harm her working relationship, as: a) at least a few of her co-workers also found her comments offensive; and b) as I alluded to above, ESPN clearly felt that her comments reflected poorly on it. On the other hand, if her job performance deteriorated significantly as a result, why did ESPN choose to let her continue working?

What about the breach of contract claim? Given that we don’t really have access to her contract, we can’t do more than speculate there.

In all likelihood, after the discovery phase, where both sides exchange documents and take depositions, ESPN will sue for summary judgment, looking effectively to dismiss Ms. Steele’s claims. The court will probably deny the motion, as courts generally don’t like to deprive a plaintiff of their day in court. Then the case may well settle because it often costs more to defend a case than settle it.

If the case settles then we probably won’t get any answers to the questions raised in the above points. Clearly, we’ll have to stay tuned to find out what actually happens.

OK, so what are our takeaways, in addition to the ones from the last post?

  1. Avoid knee-jerk reactions. Whether an employee can be fired for what they say outside of work hours is a very nuanced question. If you are a private employer, the First Amendment doesn’t protect him/her, but maybe one or more state laws do. If the speech in question is about work conditions and seems like more than just venting a personal disagreement it may be protected under the NLRA.
  2. Review past practices, if any: Ms. Steele is also arguing that other co-workers who expressed their views on issues were not disciplined as she was. If those instances are comparable, she may have a point, although, again, if she can’t satisfy the criteria above, that may not matter. The point is, if you only enforce policies against some employees and not others, you can open yourself up to discrimination allegations if the complainant is in a protected class and the others were not.
  3. Speak with friendly in-house or local employment counsel, before you act: I know, I say this in pretty much all my posts, but doing so could avoid a lot of these lawsuits. Admittedly, it might not have done so here, but often it can.

I think we’ve unpacked enough for now, so let’s leave stop here, shall we?

Feel free to leave your thoughts in the comments section.

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?

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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.

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