Speech at work complaining about alleged anti-white bias in the context of the Trayvon Martin matter = ‘hostile work environment’ harassment

August 28, 2014

Here’s an excerpt from an administrative decision I just read, DeMay v. Richmond County Dep’t of Social Servs., 2014 WL 4206296 (N.C. Office of Admin. Hearings); it was filed July 2, 2014, but just posted on Westlaw on Wednesday. The petitioner was demoted because of a statement she made at a meeting, and the administrative decision upheld the demotion:

3. The [Department of Social Services’] Policy Concerning Unlawful Workplace Harassment provides in pertinent part:

The policy of [DSS] is that no employee may engage in conduct that falls under the definition of unlawful workplace harassment. All employees are guaranteed the right to work in an environment free from unlawful workplace harassment and retaliation. The [DSS] will thoroughly investigate all complaints made by employees and will take appropriate remedial or disciplinary action up to and including dismissal.

Definitions are:

1. Unlawful Workplace Harassment is unwelcome or unsolicited speech or conduct based upon race, sex, creed, religion, nation [sic] origin, age, color, or handicapping condition as defined by G.S. 168A-3 that creates a hostile work environment or circumstances involving quid pro quo.

2. Hostile Work Environment is one that both a reasonable person would find hostile or abusive and one that the particular person who is the object of the harassment perceives to be hostile or abusive. Hostile work environment is determined by looking at all of the circumstance [sic], including the frequency of the allegedly harassing conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance.

5. On Thursday, July 18, 2013, Petitioner attended a mandatory staff meeting of the Children’s Protection Services (“CPS”) Unit which consisted of approximately 27 employees. At such staff meetings, Bunny Critcher, the Program Manager for CPS, typically reviewed new policies and notices, and employees engaged in reinforcing “thank you’s” to fellow employees for assistance or work on various cases.

6. At a momentary pause between topics discussed at the meeting, Petitioner announced that she had a FaceBook post that she wanted to read. The entire post is as follows:

Ed Wilson

You won’t recognize me. My name was Antonio West and I was the 13-month old child who was shot at point blank range by two teens who were attempting to rob my mother, who was also shot. A Grand Jury of my mommy’s peers from Brunswick GA determined the teens who murdered me will not face the death penalty … too bad I was given a death sentence for being innocent and defenseless.

My family made the mistake of being white in a 73% non-white neighborhood, but my murder was not ruled a Hate Crime. Nor did President Obama take so much as a single moment to acknowledge my murder.

I am one of the youngest murder victims in our Nation’s history, but the media doesn’t care to cover the story of my tragic demise, President Obama has no children who could possibly look like me — so he doesn’t care and the media doesn’t care because my story is not interesting enough to bring them ratings so they can sell commercial time slots.

There is not a white equivalent of Al Sharpton because if there was he would be declared racist, so there is no one rushing to Brunswick GA to demand justice for me. There is no White Panther party to put a bounty on the lives of those who murdered me. I have no voice, I have no representation and unlike those who shot me in the face while I sat innocently in my stroller, I no longer have my life.

So while you are seeking justice for Trayvon, please remember to seek justice for me too. Tell your friends about me, tell you [sic] families, get tee shirts with my face on them and make the world pay attention, just like you did with Trayvon.

Thank you.

CONCLUSIONS OF LAW …

9. The testimony and evidence at the hearing showed that the Petitioner engaged in Unacceptable Personal Conduct by:

(1) Reading her personal telephone during a staff meeting attended by everyone in her unit. The Petitioner’s Program Manager had repeatedly told staff in the CPS that using phones for personal matters during work hours is not allowed;

(2) Reading FaceBook for non-investigative purposes during work hours. DSS Director Schrenker had, on multiple occasions, told DSS staff that being on FaceBook for non-investigative purposes during work hours is not allowed; and

(3) Reading out loud a FaceBook post with inflammatory racial and political content at a mandatory CPS staff meeting.

10. Reading the FaceBook post out loud constituted Unlawful Workplace Harassment. It was unsolicited, not on the agenda for the staff meeting, was unwelcome by other employees at the meeting, and was racially and politically provocative….

12. Petitioner’s reading of this FaceBook post contributed to the creation of a Hostile Work Environment. A “single incident might well [be] sufficient to establish a hostile work environment.” [Ayissi N. Etoh vs. Fannie Mae, 712 F.3d 572 (D.C.Cir.2013)] Employees under Petitioner’s supervision felt personally attacked and humiliated because of their race. The incident interfered with normal relations in the unit and the effects continued to be felt through the time of the hearing on May 16, 2014….

Now the demotion itself, it seems to me, is a perfectly justifiable decision for the employer to make. Supervisors are supposed to foster morale among their subordinates, not to undermine it (whether with racially divisive political statements or otherwise). Ms. DeMay offered explanations and defenses of what she was doing: She said she started reading the post based on just having skimmed the opening paragraph and without fully knowing what it said, and she said she thought “the article was ‘ridiculous’ and she read it out loud to the end of the article so that she ‘could explain the ridiculousness of it.’” But the employer didn’t have to believe her on that, and in any event the employer could conclude that the statement was harmful to morale regardless of the employee’s intentions.

There is the danger that such discipline will be applied in a viewpoint-based or race-based way, with political statements about alleged social or political insensitivity to blacks being treated one way and political statements about alleged social or political insensitivity to whites being treated another way, even when the statements cause the same amount of tension among employees. Nonetheless, generally speaking even government employers can restrict such speech when it causes sufficient disruption to the office, as this speech seemed to do. (See Pickering v. Board of Ed. (1968) and Connick v. Myers (1983), which set forth the special rules for the government acting as employer; I talk about this more here.)

But the decision didn’t just say that the speech injured morale; rather, the decision said that the speech “contributed to the creation of a Hostile Work Environment,” with “hostile work environment” defined much the way it is under employment law more broadly. It follows, then, that in the hearing officer’s opinion, this sort of “racially and politically provocative” speech would be legally actionable even if it was said in a private workplace, even when the employer itself had no desire to restrict it. That would not be justifiable under the special rules applicable to the government acting as employer. That would be the government restricting political speech even on private property, based on its content and viewpoint.

And while this case involved speech said by a supervisor in a mandatory meeting, hostile environment harassment law can likewise impose massive liability based on speech by co-workers, and speech outside such mandatory meetings. To be sure, it’s less likely that co-worker speech or speech in the lunchroom or around the water cooler would be found to be actionable by itself. But, as I argue here, harassment law inherently pressures employers to restrict even such individual instances of speech.

And the courts aren’t bashful about so declaring. A federal circuit court decision put it quite plainly:

In essence, while [harassment law] does not require an employer to fire all “Archie Bunkers” in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society.

I discuss elsewhere, in much more detail, the breadth of hostile environment harassment law, why aspects of it violate the First Amendment, and why other aspects of it are constitutionally permissible. But here I just wanted to point out how even political speech on topics related to race, sex, religion, and (in those states that ban sexual orientation discrimination) sexual orientation can be viewed as legally actionable, and suppressed by the threat of government-imposed liability, as a result.

And it is also further evidence, I think, of the danger of President Obama’s suggestion that we have “a discussion [about race] … around … water coolers … all across the country” as a means of solving racial problems. True, here Ms. DeMay spoke in a meeting, not around a water cooler; if she had spoken around a water cooler, the reaction might have been less damaging for her. But it might have led to much the same result, driven by coworkers (whether or not subordinates) having much the same reaction, based on the “inflammatory racial and political content” of her speech.

If you were advising someone, not as a politician but as a lawyer or as a friend, would you really recommend that she have “a discussion [about race] … around … water coolers” at the office, even “in a truthful and mature and responsible way”? Or would you warn her that she might get fired or demoted for it, both because of employer concern about coworker morale, and because of employer worry that statements such as hers (perhaps aggregated together over several months) could lead to an expensive lawsuit?

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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