The First Amendment Does Not Allow Discriminatory Speech at Work
Last year, a Google employee published what some have called a “manifesto” highly critical of the company’s efforts to diversify its workforce by pushing to hire more women and people of color. His post on a widely read company message board sparked intense publicity, as well as outrage in some circles, as the employee posited that the company was lowering its hiring standards.
The employee had every right to publish his views. He was, however, fired for violating company standards. As an at-will employer, Google had the right to do so. The NLRB, National Labor Relations Board, agreed. An NLRB attorney wrote: “Employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace,’ rather than waiting until an actionable hostile workplace has been created before taking action.”
The First Amendment right to free speech is greatly misunderstood. It protects us from our government squelching our views, but does not those protections, in general, do not extend when private employers are involved. Even what you say off the job can affect your employment status with a private employer.
An employee’s actions on and off the job reflect on the employer, and the law and employment contract allow employers to sever that relationship for many reasons.
An employee who works for a governmental agency may express his/her views critical of our government while enjoying protections from any repercussions in the workplace because of the First Amendment. On the other hand, an employee working for a private employer may not enjoy the same protections. Consequences can result from speech engaged in by employee of a private employer, and the First Amendment is likely not available to protect the employee from being terminated.