ESPN host Jemele Hill, Goldman Sachs president-turned presidential economic advisor Gary Cohn and fired Google engineer James Damore have all learned the same painful lesson in the past few months. Despite what many Americans may believe — and what unfolded at the start of a number of NFL games this past weekend — there are few, if any, freedom of speech rights in the workplace.
Cohn, who resigned his lucrative Wall Street job to become director of the National Economic Council and chief economic advisor to President Donald Trump, had been regarded as bullet-proof in the chaotic administration. That is, until an August interview with the Financial Times, in which Cohn criticized Trump’s response to August’s white supremacist rally in Charlottesville, Virginia.
It appears that Cohn’s criticisms of his boss’ comments could cost him a previously expected promotion to Federal Reserve chairman. The blowback from Cohn’s remarks even prompted him to draft a letter of resignation from his current White House post, although recent news reports have indicated he’s remaining with the administration.
Then there's Damore, who wrote a memo decrying Google’s diversity efforts, and questioning whether women are biologically and psychologically as capable as men for the company’s engineering jobs. The online giant fired him in early August shortly after the memo was leaked and went viral, saying portions of the document “violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace.”
At the other end of the political spectrum there’s Hill, a popular black female host on a sports network dominated by men. She entered the workplace free speech fray when she sharply criticized Trump via Twitter, including calling him a white supremacist. Reflecting the blurring of employees’ professional and personal personas in today’s social media-fueled world, ESPN publicly rebuked Hill, saying she “has a right to her personal opinions, but not to publicly share them on a platform that implies that she was in any way speaking on behalf of ESPN.” Although the network said it had accepted an apology from Hill, speculation has been rampant that she may be reprimanded or terminated. White House press secretary Sarah Huckabee Sanders, for her part, has opined that Hill's anti-Trump tweets were a “fireable offense.”
Despite Sunday’s NFL’s Games, Free Speech in the Workplace Doesn’t Exist
Dozens of NFL players—prompted by Trump’s profane castigation of free agent Colin Kaepernick for protesting at 2016 games by “taking a knee” during the National Anthem—may seem to have muddied the free speech waters during Sunday’s games. But the players have no true legal protections for their actions, as Kaepernick discovered when he first began his silent protests. After opting out of his contract with the San Francisco 49ers last year to become a free agent, opinion has been rife that he wasn’t signed by another team solely because of his protests.
Cohn’s, Damore’s, Hill’s and Kaepernick’s experiences underscore a reality American workers should understand and heed: No matter whether you work at the White House, Silicon Valley, the NFL, or a fast food restaurant, most employees have no protections from being fired for what they say.
A law professor, writing for the American Bar Association, summed up the lack of U.S. workplace free speech rights by paraphrasing the late Supreme Court Justice Oliver Wendell Holmes, Jr. this way: “A employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.”
From a practical standpoint, this is especially true for employees of organizations whose prominence can easily lead to a controversial or provocative statement going viral. Some high-profile employees such as NFL players may find some protection via the Court of Public Opinion, but they shouldn’t count on federal law to protect their speech.
Exceptions May Stem from Other Anti-Discrimination Laws
Interestingly, a state, not federal, law may protect Hill’s job. A statute in Connecticut, where ESPN is headquartered, prohibits even private employers from disciplining or firing employees for exercising “rights guaranteed by the First Amendment to the United States Constitution.”
Although free speech rights generally don’t apply in the workplace, especially within private organizations, other rights may offer workers’ some protection to speak their mind:
- Is employees’ speech restricted or punished because they are expressing religious or other beliefs different from their employers’ or co-workers’? That may be protected.
- Are employees of some religions or national origins allowed to express themselves regarding religion or national origin, while others aren’t? (Could Kaepernick make this case by contrasting his situation with that of former NFL quarterback Tim Tebow, who became known for kneeling in prayer during games?)
- Are employees punished for speaking different languages when they’re on breaks or otherwise private time during the workday?
- Are employees protected by some other privilege, such as union regulations, or an employment contract.
Conversely, if employees’ speech violates anti-harassment or anti-discrimination laws, they could be violating laws that justify workplace discipline or termination. (This is a position Google may take if Damore sues over his firing.)
While it may seem as surreal as the political times we’re living in, the constitutional amendment that protects Trump’s right to make outrageous, and even untrue, public statements generally doesn’t protect U.S. workers if they say things that rub their employers the wrong way. So, if you’re below the rank of president—or not among a large group of prominent NFL players riding a national controversy fueled by our controversial president—remember James Damore. Be mindful of what you say in the workplace or in any potentially public forum, notably on viral-prone social media.