Wednesday, June 28, 2023

Employer correctly fires employee for posting racist meme, court says

Rita Hall worked as a line supervisor at Kosei St. Mary's Corporation when she decided to post a meme of two juxtaposed photos on her personal Facebook page — one photo of a group of monkeys on and around a car, and a second photo of a group of Black people on and around a car. At least three of Hall's subordinates and coworkers filed complaints with KSM's human resources department about the racist meme, and the company subsequently terminated Hall because of it.

In her wrongful discharge lawsuit, the court of appeals had a lot to say about Hall's free speech rights at work, none of it good for the former employee or her lawsuit.

We conclude that, in the absence of state action, the free speech protections of the Ohio Constitution do not provide a basis for Hall, an at-will employee, to raise a wrongful termination in violation of public policy claim in this case against KSM, a private employer. … We have not uncovered a case in which the free speech protections in the Ohio Constitution have been found to provide a legal basis for bringing a wrongful termination in violation of public policy claim against a private employer in the absence of state action. We decline the opportunity to become the first court to reach such a conclusion.

Repeat after me: private-sector employees have zero free-speech rights at work (except for their rights under the National Labor Relations Act to engage in protected concerted activity). The Constitution's free-speech rights apply to government action, not private employers. Or to put it more glibly, freedom of speech does not mean freedom from consequences.