Absolutely yes – depending on the circumstances. While we have grown up with the notion that free speech is sacrosanct in this country, the First Amendment actually only prohibits the government from restricting individuals’ speech. The restriction on censorship does not extend to private employers and, to be clear, not-for-profit organizations are also private employers.
Protections of Employee Speech
That does not mean that employers can control or punish all employee speech. Our laws provide numerous circumstances in which employee speech is protected. Under the National Labor Relations Act, employees have the right to discuss terms and conditions of their employment with other employees, including even some degree of trash-talking their employers. Under federal and state laws, employees are protected against retaliation as “whistleblowers” for reporting a range of employer activities that they believe to be unlawful. Employees are similarly protected against retaliation for reporting or speaking out against harassment or discrimination based on certain protected characteristics.
When Employers Can Act on Speech
Outside those exceptions, however, employers generally have the discretion not to hire, or to terminate employment, based on an employee’s speech. For example, last year in McVey v. Atlanticare Medical System (2022), the New Jersey Appellate Division held that the medical system acted lawfully in terminating the employment of a corporate director for having posted on her personal Facebook account racially insensitive comments about the Black Lives Matter movement that violated the employer’s social media policy. The Court held that neither the First Amendment nor the New Jersey Constitution reflect a clear mandate of public policy that prohibit the employee’s termination.
This past June, the Second Circuit appellate court in Cooper v. Franklin Templeton Invs. dismissed an appeal by a woman who had been terminated by her employer after a video of her making a false police report went viral on social media. The woman, who was an investment portfolio manager, had called the police while walking her dog in Central Park to report that “an African American man” was threatening her and her dog. The video showed the man was trying to watch birds in Central Park and had asked her to put her dog on a leash, as was required in that section of the park.
In both cases, the employee was terminated for statements made outside of work, on the employee’s own time. One employee was posting her comments on social media, where her association with her employer was identifiable. The other employee’s privately-stated comments were recorded on video and then posted on social media, where she became identifiable and her actions were brought to the attention of her employer.
Responding to Recent Antisemitic Events
In other contexts as well employers can choose not to hire, withdraw job offers or terminate the employment of individuals whose speech is inconsistent with the mission or values of the organization. It is how many of the top law firms in the country could write to the deans at 100 law schools this past week, warning that antisemitic activities, including rallies calling for the death of Jews or the elimination of the State of Israel, are a form of harassment that would never be permitted in their workplaces and that they expect to be addressed at law school campuses. It is how two such firms could have rescinded job offers to law students at NYU, Harvard and Columbia for widely distributed statements sent on behalf of student organizations, pronouncing “Israel bears full responsibility” for the October 7, 2023 terrorist actions of Hamas. And it is how hedge fund CEO Bill Ackman and other CEOs can declare that they will avoid hiring those Harvard students who signed a statement blaming Israel for Hamas’ October 7 attack.
The comments about Israel are not mere political statements about foreign nations. Rather, in the face of one of the most horrific single-day incidents of grotesque brutality to innocent civilians, those statements are devoid of empathy for the 1400 individuals (from babies to grandparents) who were raped, beheaded, burned alive and otherwise tortured and all slaughtered. They reflect a complete devaluing of the humanity of Israeli citizens. Public praise for the work of a terrorist organization in these circumstances is a form of hate speech that employers may reasonably find so toxic as to want to avoid any association with the speaker.
Words Can Do Harm
I was raised with the adage, “sticks and stones will break my bones but words will never hurt me.” It is quippy. It also, I have come to learn, is seriously misguided. Words do hurt – deeply. Words are sufficient to incite violence. The events that have unfolded on college campuses this past month and the January 6, 2021 riot on the U.S. Capitol are two very stark recent examples of that. And so, if your speech outside work is incendiary, is racist, or otherwise conflicts with the values of your employer, you may, indeed, find yourself out of a job.
By Tracey I. Levy