How Do Employers Get Away With Terminating an Employee for Offense Speech?

The question of whether employers can terminate an employee based on what they say at work is a complex legal and ethical issue. This article explores the boundaries of free speech in a professional setting and how employer policies affect termination decisions.

Understanding Free Speech in a Workplace Context

In the United States, the First Amendment to the Constitution guarantees the right to free speech, but this protection is not absolute. The amendment primarily protects against laws abridging the freedom of speech, not actions and policies by private entities. Companies, including those based in the United States, have the right to establish and enforce their own conduct policies to maintain a work environment that is free from harassment, discrimination, and other undesirable behaviors.

Deep Dive into Employer Policies and Free Speech

Whether an employee can be fired for their speech often hinges on company policies and the specific details of individual situations.

Read the Employee Handbook

Employers typically have comprehensive employee handbooks that lay out the rules and expectations for employees. If an employee's speech violates these policies, their termination can be legally justified.

Example: An employee was terminated for verbally abusing and bullying the owner. While free speech is protected from government infringement, violating company policies, such as those against bullying, can lead to termination.

Standards of Conduct and Company Values

Many companies, especially large ones like Facebook, have established community standards to maintain a respectful and safe environment. These standards often include prohibitions against offensive language, hate speech, and attacks on the company and its management.

Example: Facebook's Community Standards strictly prohibit hate speech, harassment, and other forms of abusive behavior. Similarly, companies can have policies against using foul or offensive language, racists remarks, and unwarranted attacks on the company or management.

Consequences of Offensive Speech

The right to free speech is not absolute in a workplace setting. While employees have the right to express their opinions, this right is not without limits. Speech that infringes on the rights of others, causes harm, or violates workplace policies can and often does result in termination.

Employment Laws and Free Speech

Employment discrimination laws and harassment policies further restrict the freedom of speech in a workplace environment. Offensive jokes, derogatory slurs, and comments that create a hostile work environment are violations of these laws. Employers are required to address and correct such issues to maintain a safe and respectful work environment.

Example: An employee who made offensive comments about a coworker's race or gender could be subject to termination if their behavior continues despite warnings and attempts to address the issue.

Personal Values and Free Speech in the Workplace

While free speech is a fundamental constitutional right, it must be balanced against the right of others to work in an environment free from harassment, discrimination, and other harmful speech. Employers have the right to prioritize minimizing harm caused by offensive speech and protecting the rights of all employees.

Example: Some individuals value their freedom of association more than others. They may choose to prioritize creating a work environment free from harmful speech over allowing harmful speech to continue.

Conclusion

In summary, while free speech is protected by the First Amendment, the right to express oneself is not absolute in a workplace setting. Employers have the right to establish and enforce policies that protect their interests and the well-being of their employees. If an employee's speech violates these policies or creates a hostile work environment, termination may be justified.