A politically divided nation can mean a politically divided workplace. While employers generally hesitate to react to employees’ expression of political views, some comments viewed as extreme, threatening or inconsistent with the employer’s public image can result in the need to take appropriate action in response. While private employers are relatively free to discipline employees based on political expressions, governmental employers must respect their employees’ free speech rights. Last month, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) rejected a firefighter’s claims that his termination for social media comments violated his constitutional rights.
In Grutzmacher v. Howard County, the plaintiff was a battalion chief for the fire department, and had leadership and supervisory responsibilities over other firefighters. In 2012, the department adopted social media and conduct policies that prohibited employees from engaging in communications that (1) involved discriminatory or harassing behavior; or (2) undermined the views of the department or county. While on-duty, the plaintiff posted the following comment to his personal Facebook page after watching a gun control debate: “Think of the satisfaction of beating a liberal to death with another liberal.” A few minutes later, another firefighter responded: “Gotta pick a fat one, those are the ‘high capacity’ ones. Oh…pick a black one, those are more ‘scary’.” The plaintiff in turn “liked” this response. After receiving complaints from other firefighters, the department directed the plaintiff to remove the post. He did so, but posted additional complaints about being required to do so.
After an initial suspension and investigation, the department terminated the plaintiff for violation of its policies, based on his approval of the racist overtones expressed in the dialog, insubordination and inconsistency with his leadership position. He sued under Section 1983, claiming violation of his First Amendment rights to free speech. The district court dismissed the suit, and the Fourth Circuit affirmed this dismissal.
The court accepted the department’s arguments that it did not violate the plaintiff’s First Amendment rights. While some of his comments may have reflected matters of public concern (gun control), they were inconsistent with his position within the department. While public employees do not relinquish their free speech rights, the employer has a countervailing interest in controlling the operations of its workplaces. In this case, the plaintiff’s social medial comments interfered with and impaired department operations based on the racial nature of the comments, as evidenced by complaints from black firefighters. The plaintiff’s leadership position within the department meant that his comments called into question his ability to fairly deal with black subordinates and members of the public.
The Fourth Circuit also noted the fact that the comments were made on-duty, and that the plaintiff continued his defiant behavior after being counseled about the consequences of his actions. Paramilitary organizations such as fire departments have an increased interest in maintaining discipline and the chain of command. The county subsequently amended its social media policy to remove the broad language about comments inconsistent with its interests. However, this decision demonstrates that with more narrowly drawn policies, public employers maintain the ability to discipline employees for social media behavior that proves truly disruptive to their operations.
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