Free speech doesn’t apply at work

In these politically divisive times, private-sector employees might be tempted to argue about politics on social media, at the water cooler or wherever they hang out.

But if they find themselves unemployed because their views ran counter to those of their boss or supervisor, they can’t allege a violation of their free-speech rights, legal experts said.

As U.S. Supreme Court Justice Oliver Wendell Holmes Jr. wrote in the 1890s: An employee has a constitutional right to free speech, but not to be employed.

Courts generally still follow that reasoning, according to the American Bar Association.

Workplace anti-discrimination laws protect people based on gender and religious thought, minorities, those with disabilities, older employees and workers who need time to deal with illness, whether their own or a relative’s.

Yet lawyers interviewed don’t see a free-speechin-the-workplace law on the horizon, even with the heated debate permeating society since the 2016 election.

The First Amendment limits the government from regulating free speech; it does not limit your boss. This also applies to what you post on social media or say on a radio call-in show.

Questions about the freespeech rights of employees received considerable attention this month when a Google engineer was fired after his 10-page document chastising the company’s diversity efforts became public. Experts don’t give the engineer much of a chance for a successful lawsuit, according to the bar association’s News Advisory website.

“I’m not aware of any cases in which an employee has had success with a political-speech discrimination claim,” said Jeannette Cox, a University of Dayton law professor. An employee’s political speech generally is not protected by the National Labor Relations Act or Title VII of the Civil Rights Act, Cox said.

“A lot of people are feeling that they can’t really be honest of who they politically support,” said Columbus business-litigation lawyer Erica Probst.

In recent months, Probst said she’s heard that local supporters of President Donald Trump are feeling ostracized, as if “they’re some sort of pariah.” But Probst, who represents plaintiffs in discrimination cases against businesses, said she hasn’t been approached to handle a free-speech-in-the-workplace case.

Like Probst, First Amendment lawyer Marion H. Little Jr. of Columbus doubts there will be a push to pass a free-speech protection law for workers, “although Republicans control most of the state governments.”

Republicans could feel pressured to protect their base, which has been more vocal since the election. “Their base thinks they’re perpetually attacked,” Little said.

Still, he added, the Republican leadership has more important and difficult issues to tackle.

Ohio law provides public employees some protection from retaliation for exercising First Amendment rights when discussing topics of “public concern,” such as school taxes or government efficiency.

Civil-service laws and union membership also provide public employees protection.

“No (private or public) union is going to accept that someone has been fired because of protected speech,” Little said. Unless it’s egregious, such as hate speech, it’s not a battle that companies want to fight.

Otherwise, private employees generally have no protection when they exercise free speech.

“An extreme example might be an owner saying, ‘I’m not going to hire any Democrats,’” Little said. Considering that African-Americans overwhelming vote Democratic,

an argument could be made that the owner is excluding minorities and violating the Civil Rights Act, he said.

A few states provide some protection for certain political activities and speech, but Ohio isn’t among them, Cox said.

James S. Mowery Jr. has handled discrimination cases for more than 40 years. He said he once needed the protection of guards carrying shotguns while he represented African-Americans trying to get into a skilled-trades union.

Mowery agreed that there’s no free-speech protection for the workplace and that “management has a great deal of latitude.”

Discrimination cases often include an allegation of retaliation by management against the employee who made the complaint.

“The retaliation claims are actually easier to prove than discrimination cases,” Mowery said, but not if the retaliation is tied to an unprotected free-speech claim.

He doubts that lawmakers on any level would back free-speech-in-theworkplace legislation because of the contributions they receive from companies and industry groups.

If a colleague’s bombastic political rant is getting under your skin, ask the person diplomatically to stop, Mowery said. Don’t start an argument.

If that doesn’t work, go to a supervisor next, Mowery said. “You can make the complaint that he’s interfering with you doing your job,” he said.

What you don’t want to do is go to the human-resources department first, Mowery said.

“You need to know that it’s going to come back to the supervisor, who might view it as going over their head,” he said.