By Brent A. Morris
As we recover from a week-long “Election Night” in 2020, let’s return to the unexpected and tense evening of November 8, 2016. In the early morning hours after the results came it, when it became clear that Donald Trump had shocked the world with an electoral victory, Danyelle Bennett, a 911 dispatcher for the Metro Government Emergency Communications Center of Nashville, Tennessee (“Metro”), went to Facebook to comment on the win, as millions of others did.
Ms. Bennett, however, certainly crossed any line of decency as she celebrated the President’s victory. She posted on her public profile – “Thank god we have more America loving rednecks. Red spread across all America. Even n***** and latinos voted for trump too!” [she did not include asterisks.] Immediately, co-employees of Metro responded to her in shock as to her racist comment. One co-worker stated – “Was the n***** statement a joke? I don’t offend easily, I’m just really shocked to see that from you.” Another colleague (an African-American woman) called her and explained why the post was offensive. Ms. Bennett took her post down that night, but the damage was done.
The next day at work, her Facebook post had circulated among the workplace. Ms. Bennett’s supervisors received reports about complaints and conversations over the post. Two employees complained that it was offensive. One member of the public complained, linking Ms. Bennett’s personal account to her position at Metro because her position was in her bio. The public post even got the attention of the Mayor’s office. At the end of an investigation, in which Ms. Bennett stated that her co-workers were just “playing the victim,” she was terminated for conduct “unbecoming of an employee of the Metropolitan Government.”
Ms. Bennett filed a lawsuit in federal court, claiming that her Facebook post was political speech protected by the First Amendment. She argued, therefore, that she was wrongfully discharged. In another interesting twist, the case was heard by Eli Richardson, a recent Donald Trump appointee. The judge sent the case to a trial jury, and the jury concluded that Bennett’s speech “was not reasonably likely to impair discipline by superiors at [Metro], to interfere with the orderly operation of [Metro], or to impede performance of Bennett’s duties at [Metro].” The jury did however conclude that the post was “reasonably likely to have a detrimental impact on close working relationships at [Metro] and undermine the agency’s mission.”
Based on these findings, the district court ruled from the bench, in a surprising opinion, that because the Facebook post represented the “mere use of a single word” and generally concerned the election, it amounted to core political speech protected by the First Amendment, and therefore Metro was unjustified in terminating the plaintiff. The jury, told to calculate her damages, did not seem to have their heart in any large verdict, awarding only $25,250.
Earlier this year, the 6th Circuit released their opinion on the case, unanimously overturning the opinion of the District Judge. They stated that the word was patently offensive and that employees’ concerns over the language, including the “detrimental impact on close working relationships for which personal loyalty and confidence are necessary,” overrode any First Amendment concerns. In a strongly worded moment, the Court stated that “[t]he district court’s reference to Bennett’s use of “n*****” as ‘the mere use of a single word’ demonstrates its failure to acknowledge the centuries of history that make the use of the term more than just ‘a single word.’ The use of the term ‘evok[es] a history of racial violence, brutality, and subordination.’”
So what lessons can we take from this case? If you are a governmental employer (or a semi-governmental employer, a sometimes-difficult analysis), you can see that the First Amendment provides powerful protections for your employees’ speech. In a case involving explicitly racist speech, openly published on Facebook and viewed by other employees, the trial court still determined that such speech was protected. The 6th Circuit’s overturning of that result does, at the very least, suggest that using the “n-word” even in a political context is grounds for dismissal if other employees are upset by its usage.
So what if you are a private employer? Obviously, you are free to terminate any employee that engages in the sort of language used by Ms. Bennett. And you very likely should terminate an employee using any such language, as any lesser disciplinary measure could be used against you in a lawsuit should the same employee become the target of that suit. In other words, in a racial discrimination lawsuit, opposing counsel can use your failure to terminate an employee using the “n-word” or similarly extreme racial language as evidence of a culture of racial insensitivity or bias.
The trickier analysis, however, involves less extreme racial language. When, for instance, an employee posts on Facebook or any other platform language that is problematic but perhaps not patently offensive, your best defense is having a solid Social Media Policy. Such policies clearly lay out the expectations of the employer as it relates to an employee’s conduct outside of work on media platforms. The language of the policy should explicitly reserve the right to discipline employees for language used on social media or the internet at large. These policies are actually helpful to employees, as it has been our experience that many employees believe that the First Amendment protects their “free speech” outside of the workplace. The short answer – it does not. Employees have no First Amendment protections as it relates to discipline by a private employer.
Finally, Social Media Policies insulate the employer from claims that the offending employee(s) were wrongfully terminated. For instance, imagine a suit brought by an employee who was terminated for allegedly inappropriate Facebook posts, but said employee argues that they were in reality fired for some illegal reason (for example, retaliation for filing a workers’ compensation claim). In that case, the Social Media Policy will provide the precise mechanism of termination which helps the lawyers argue for the defense of the employer.
This case worried employers for months as we waited on the 6th Circuit decision. To have ruled that Ms. Bennett’s posts were “protected political speech” would have potentially created untenable situations with co-employees and would have left governmental employers with little options to prevent hostility. Thankfully, the 6th Circuit ruled that there is no place for extreme language in the workplace, and all employers can use the case as an opportunity to review their Social Media Policies.
Brent A. Morris, Attorney
Wimberly Lawson Wright Daves & Jones, PLLC
Nashville, Tennessee office
bmorris@wimberlylawson.com