There is no such thing as free speech at work

"Having successfully settled my case with ESPN/Disney, I have decided to leave so I can exercise my first amendment rights more freely."

-vs-

"ESPN and Sage Steele have mutually agreed to part ways. We thank her for her many contributions over the years."

Those are two vastly different statements published by (now former) ESPN anchor Sage Steele and her former employer.

ESPN's statement is standard vanilla for a company announcing someone's departure.

Sage Steele's statement, however, is borderline dangerous because it continues to foster a myth that private sector employees enjoy First Amendment rights at work.

Steele's lawsuit against ESPN followed her removal from the air two years ago after a series of controversial public comments about vaccine mandates ("to mandate … is … sick … and … scary"); female sports reporters and sexual harassment (women need to "be responsible" and it "isn't just on players and athletes and coaches to act a certain way"); and former President Barack Obama's racial identity ("I think that's fascinating considering his Black dad was nowhere to be found, but his White mom and grandma raised him").

Let me say this one more time, loudly, for the people in the back:

THERE IS NO SUCH THING AS FREE SPEECH AT WORK.

The First Amendment to which Sage Steele refers prohibits the government from restricting speech, not private employers — "Congress shall make no law … abridging the freedom of speech…."

Yes, there are some limited exceptions to the lack of workplace free speech rights — government workers; complaints about discrimination; protected concerted activity under the National Labor Relations Act; and the few states that grant speech rights to all employees.

But otherwise, no one should operate under the mistaken impression that they can flap their gums about whatever they want without workplace consequences. People like Sage Steele who continue to perpetrate the fallacy of workplace free speech are doing everyone (including themselves) a grave disservice.

Despite what SCOTUS said about collegiate affirmative action, corporate DEI efforts are still legal

Last week, a federal court judge dismissed a lawsuit filed by a conservative shareholder against Starbucks challenging the company's diversity, equity, and inclusion policies. He called the lawsuit "frivolous."

In 2020, Starbucks decided that it needed a greater representation of BIPOC (Black, Indigenous, People of Color) employees. As a result, it announced a policy that aimed to increase company-wide BIPOC representation to at least 30% in five years. Its efforts included implementing a leadership accelerator program for BIPOC employees, linking executive compensation to meeting DEI goals, and granting funds to community nonprofits.

National Center for Public Policy Research, which owns around $6,000 in Starbucks stock, sued, claiming those policies require the company to make race-based decisions in violation of state and federal civil rights laws. Explaining the lawsuit, the NCPPR said that setting "goals for the number of 'diverse'—meaning not-white—employees it hires … is outright racial discrimination."

Not all reasonable accommodation standards are created equally

Consider this example, and then let's talk.

Lydia works as a cellar person in a brewery. The essential functions of her job include the ability to lift up to 40 lbs. and to move kegs that weigh as much as 160 lbs. She delivers a note from her doctor that says, "No lifting or moving more than 10 pounds."

What are this employer's obligations to offer her a reasonable accommodation for her lifting and moving restrictions? It depends on the medical reason.

Pregnant Workers Fairness Act and pregnancy loss

Missy, a newly hired server in the taproom of a brewery, suffers a miscarriage and asks her manager for ten days of leave to recover. As a new employee, Missy has not yet accrued any paid leave. The employer is too small to be covered by the FMLA and does not have a policy providing any unpaid leave.

Must the brewery grant Missy her requested ten days of post-miscarriage leave?

Historically, the answer could have been no.

WIRTW #682: the “horse hockey” edition

Lou Grant. Leslie Knope. Dr. Mark Greene. Captain Merrill Stubing. Even Michael Scott. The history of television is littered with great bosses. Earlier this week my friend Suzanne Lucas asked her vast LinkedIn network to name their choice for the “best” tv boss. Her choices were District Attorney Adam Schiff and Lieutenant Anita Van Buren, from Law & Order.

My choice: Colonel Sherman T. Potter, who adroitly and compassionately led M*A*S*H's 4077 for the series' final 8 seasons.

What made Col. Potter the best boss?

First and foremost, he always had his team's back, no matter what. He took ownership of his group and shouldered the blame whenever something went wrong. As the 4077's leader, the buck stopped with him, period. Which is not to say that his unit didn't have accountability. To the contrary, he always held his people accountable inside his unit, even as he defended them to everyone outside. When his people screwed up (as they often did), he made sure they understood and that it never happened again.

Col. Potter also embodied much of the best qualities of a good boss. His integrity was unmatched and unquestioned. He always encouraged everyone in his command to be the best versions of themselves and led by example. He knew when to use humor to lighten a situation and when to put the screws to him team. And, most importantly, he never forgot that his doctors, nurses, and other charges weren't soldiers by trade but were stuck in the middle of war zone. It's his empathy and compassion that stands out the most from all of his other admirable qualities.

And that's why Sherman Potter is the correct answer as the best tv boss of all time.

Who is your choice? Share in the comments below.

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Here's what I read this week that you should read, too.

$2.6 million reasons why it’s illegal to fire a gay employee

Yesterday, a federal jury in Columbus returned a $2.6 million verdict in favor of Stacey Yerkes, a former Ohio State Highway Patrol employee who claimed that she was constructively discharged (forced to quit based on intolerable and unreasonable working conditions) because of her sexual orientation.

Despite what he says, Elon Musk will not pay your legal bills if you’re fired for Xing

"If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill. No limit. Please let us know."

Elon Musk tweeted (xed?) that note Saturday night to his 152 million followers on his platform. Thus far it’s been liked close to 850,000 times, quoted or retweeted more than 165,000 times, and viewed nearly 130 million times.

And it's complete and total rubbish.