05 Sep 2014 Government May Soon Direct What Private-Sector Employees May Say in the Workplace
Employee’s Demotion for Comparing Media and Political Reaction to Trayvon Martin’s Death to Lack of Response Over Shooting of a White Baby Upheld
Decision Highlights Troubling Aspects of Potential Government Overreach in “Hostile Work Environment” Laws
Washington, D.C. – In response to a recently-announced North Carolina administrative decision upholding an employee’s demotion for comments about race, and in light of the calls for increased racial dialogue following Michael Brown’s death in Ferguson, Missouri, the National Center’s in-house legal scholar is warning American workers that local and federal government leaders may soon restrict racial and political speech even in private work places.
“In the wake of Michael Brown’s death in Ferguson, Missouri, political leaders and pundits are calling for Americans to engage in frank discussions about racial issues. It is a common theme following such events, but one that is fraught with peril for American workers,” warns National Center General Counsel Justin Danhof, Esq. “Just as President Barack Obama called for a national discussion about race following Trayvon Martin’s death, pundits of all stripes are clamoring for kitchen table and water cooler talks following the death of Michael Brown and subsequent riots in Ferguson, Missouri. This is potentially dangerous advice.”
Any earnest discussion about race – specifically in the workplace – could very quickly lead to claims of a racially hostile work environment. Those claims can lead to demotion or termination for those participating in such conversations. A case that was recently decided by the North Carolina Office of Administrative Hearings highlights the problem.
The facts of the case are straightforward. In brief, an employee – who was a government worker in a supervisory role – used a break in a meeting to read aloud from a Facebook post. Written from the imagined perspective of an actual 13-month-old white baby boy who was murdered in Georgia, the post lamented the decided lack of political and media attention to his death at that time as opposed to the constant attention surrounding Trayvon Martin’s death at the same general time. The post attributed much of this discrepancy to race – the baby being white and Trayvon being black.
The employee was demoted for her actions, and the recent North Carolina case upheld that decision.
“I do not have qualms with the specific outcome of the case since the employee appears to have broken clear office rules regarding cell phone and Facebook use. The problem is that the arbiter went too far in ruling that the employee’s action contributed to a hostile work environment,” said Danhof. “This has implications beyond this one government employee and could negatively impact many private sector employees as well. Many hostile work environment laws are inherently vague and therefore give the arbiter extreme latitude in deciding these cases. This is an issue that transcends race, and the way it can stifle free speech and put employees at risk for something even the President encourages shows why something must be done to reform this problem in the workplace.”
Cases such as this could very well lead to instances of government restricting speech based on content and viewpoint – where speech deemed hostile to blacks is punished and speech that is hostile to whites it not – even when such speech is on private property.
“By declaring that the employee’s speech was ‘racially and politically provocative,’ the precedent set by the hearing officer could make these types of statements actionable in a private work setting – even if the employer would not restrict such speech,” said Danhof. “That is big brother on steroids.”
“Do you think affirmative action discriminates against white and Asian students, and that some black and Hispanic beneficiaries of the program are undeserving? You better not say so out loud. Do you support ballot integrity measures such as voter identification laws? You better not talk about it, lest you be judged as hostile to blacks,” warns Danhof. “Law and justice are increasingly color-centric, not color blind. Americans who want to have earnest discussions about these and other important issues at work, do so at their own peril.”
To read more of Danhof’s legal analysis and commentary on this issue, go here.
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