The legal implications of racist after-hours social media activity

June 21, 2020

Employees posting seemingly racist comments on social media didn’t just start in 2020, but recent posts are being brought to the attention of employers and businesses are taking action.

Whether employees can be terminated for comments made after hours on their own time using their own electronic systems may depend on whether the employee works for a public or private employer.

Employees who work for a public employer enjoy certain First Amendment rights to their speech and cannot be terminated for comments made as a citizen on matters of public concern unless the speech impedes the efficiency of the public service performed by the employer.

Last year, a federal district court in Florida dismissed a case filed against a court clerk after the clerk compelled the resignation of an employee for making what the clerk viewed as inappropriate and racist comments on social media after hours. The employee sued the clerk for violation of his First Amendment rights.

The employee working in the clerk’s office commented on social media about the Florida Attorney General’s decision not to seek the death penalty in a case. The employee said that the attorney general (a black female) should “get the death penalty” and “tarred and feathered if not hung from a tree.”

The post was deleted nine hours after the posting, but it went viral and the clerk’s office was inundated with public complaints.

After a protracted litigation, the federal court dismissed the case against the clerk, holding that the post called into question whether the clerk “was capable of discharging its important duties in an impartial manner.”

Thus, despite the First Amendment protections, the court nonetheless dismissed the case in favor of the public sector employer.

This case demonstrates that even where the First Amendment rights apply, an employee can still be terminated.

With that backdrop, consider that private sector employees do not even have the First Amendment considerations and individuals making such posts can be swiftly and publicly terminated by their employers.

For example, an employee working at a large retailer videotaped what could only be characterized as a racist rant against a woman who she said ran a red light. Using racial slurs and disparaging language, the woman’s post caused social media to seek out the identity of the woman’s employer, who then promptly posted that she had been terminated. The employer stated that such conduct was not tolerated for any of its employees.

While employees working for the private sector do have a right under the National Labor Relations Act to engage in concerted activity for mutual aid and protection, this right is narrowly tailored to specific actions by two or more employees seeking to address working conditions. It would not prevent a private sector employer from taking disciplinary action against an individual or groups of employees making racist comments.

Individuals should not just be concerned about their own conduct, but also that of their spouses.

The Major League Soccer team LA Galaxy and midfielder Aleksandar Katai “mutually agreed to part ways” after his wife made two racist posts, one with a picture of a black woman running from a Nike store after an apparent looting stating “Black Nikes Matter” and another she posted a racist comment in Serbian.

In his own post, Katai condemned the posts made by his wife as racism and took “full responsibility” for the post, promising that he and his family will “learn, understand, listen and support the black community.”

In addition to employees, students also need to consider the risk of inappropriate posts.

North Carolina State University announced this month that two incoming freshmen would not be permitted to attend the university after it was made aware of racist posts made by the students.

Before posting anything online, consider the implications of those posts and whether they could be viewed as racially disparaging.

Also consider educating your family as to the implications of how their posts could be associated to you and the negative consequences that may follow.

If you post a racially derogatory sentiment, don’t expect to be employed.