Duck Dynasty's Phil Robertson Surviving Doesn't Mean You Can Say Anything At Work

First Amendment has no power in the workplace

TV Duck Dynasty
AP
Unless you've been out of the country for the holidays, you probably heard about the brouhaha over Duck Dynasty patriarch Phil Robertson's anti-gay and racist comments. He was interviewed by GQ and made comments that got him suspended indefinitely by A&E Television Networks, LLC. That caused an uproar, with petitions from Robertson supporters flying and claims that A&E violated his First Amendment rights. He was then reinstated.

Does this mean that you should let loose with your beliefs about race, women, gays, or religion at work or in your public social media? Heck no. You probably aren't bringing in millions of dollars of revenue to the company. You probably don't have thousands of supporters who will petition for you. You'll just be fired.

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I won't comment about the justice or injustice of the suspension or the wisdom of the reinstatement. What I will do is tell you why A&E had every right (and possibly responsibility) to discipline him for making those remarks, and why they should be worried about the reinstatement. First, let's see what he actually said:
  • "Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men."
  • "[D]on't be deceived. Neither the adulterers, the idolaters, the male prostitutes, the homosexual offenders, the greedy, the drunkards, the slanderers, the swindlers - they won't inherit the kingdom of God. Don't deceive yourself. It's not right."
  • "It seems like, to me, a vagina-as a man-would be more desirable than a man's anus. That's just me. I'm just thinking: There's more there! She's got more to offer. I mean, come on, dudes! You know what I'm saying? But hey, sin: It's not logical, my man. It's just not logical."
  • About the South during Jim Crow: "I never, with my eyes, saw the mistreatment of any black person. Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I'm with the blacks, because we're white trash. We're going across the field .... They're singing and happy. I never heard one of them, one black person, say, 'I tell you what: These doggone white people'-not a word! ... Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues."

So, you're the employer. Your employee makes these comments and all their co-workers know about them. In this case, so does the public. What do you do? I'll tell you what you don't do. You don't look at the Constitution. The First Amendment right to free speech does not apply to non-government employers.

Yes, Mr. Robertson does indeed have First Amendment rights. That means the government can't throw him in jail, deny him a duck hunting license, or pull A&E's license to broadcast because of those comments.

I've said it before and I'll say it again: there is no free speech in corporate America.

What should the company consider? Here's what any employer should consider under these circumstances:

Contract: Mr. Robertson has a contract. It probably says that he can be suspended or terminated if he does anything that causes the reputation of Duck Dynasty or A&E to be damaged. Morals clauses are common in entertainment and writing contracts. If his contract says he can only be terminated for cause, then their lawyers looked at what is defined as "cause" under the contract. If you have a contract, your employer will review this first before they act. If you're like most Americans, you're an at-will employee, meaning you can be fired for any reason or no reason at all (other than illegal reasons like race, age, sex, whistleblowing, etc.)

Anti-harassment laws: Title VII and some state laws make discrimination and harassment due to race illegal. Some state and local laws make discrimination and harassment due to sexual orientation illegal. There's also an argument that Title VII's prohibition against sex discrimination bars some kinds of sexual orientation discrimination. Why should the company be worried about this? After all, he didn't make his comments to co-workers. Well, now the company is on notice of his propensity to make comments like this. So are his co-workers. Let's say he spouts off his views now that he's back to a gay cameraman, a black assistant or a Buddhist grip. The company could now be strictly liable if he creates a hostile environment at work due to sexual orientation, race or religion.

This case is similar to the situation where a superstar sales person, a favored supervisor, or the boss's daughter engages in illegal harassment. It's hard to get the company to fire or discipline someone who brings in the bucks or is a favored employee. Still, a company that ignores comments like these runs the risk that they could be held liable down the road when it happens again at work.

Even if you're the company superstar, it's best to keep your comments on race, sex, sexual orientation and religion to your close friends, family and yourself if you don't want to risk losing your job.

Donna Ballman

Donna Ballman

Contributor

Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.

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1856 Comments

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Ron

I guess this guy can say whatever he wants, but his opinions seem very naïve and prejudicial.

January 11 2014 at 7:37 AM Report abuse +1 rate up rate down Reply
onemissourian

HIS RIGHT TO SAY ! YOU HAVE NO RIGHT TO NOT BE OFFENDED. . SLANDER AND DEFERMATION OF CHARACTER WERE NOT THE ISSUE. ,IT WAS AND IS HIS OPINION, PERIOD. CAN'T HANDLE IT ? SOUNDS LIKE YOUR PROBLEM !!!

January 03 2014 at 4:21 PM Report abuse rate up rate down Reply
EmployeeAtty

I featured and responded to some of the comments made here in my follow up article, Still No Free Speech At Work: Response To Your Comments On Phil Robertson And Duck Dynasty: http://jobs.aol.com/articles/2014/01/02/free-speech-at-work-duck-dynasty-phil-robertson/?a_dgi=aolshare_twitter

January 02 2014 at 10:51 AM Report abuse rate up rate down Reply
Robert Leache

If you believe that Phil Robertson was within his rights to state his beliefs, then read up on our campaign to air a commercial in support of Phil's first amendment right to the freedom of speech.

http://igg.me/at/philrobertson/x/5920118

January 01 2014 at 8:02 PM Report abuse rate up rate down Reply
1 reply to Robert Leache's comment
job4carolynhicks

You want me to watch a commercial supporting Phil's first amendment right say that African Americans were happy with no rights.

laughable!

January 01 2014 at 10:36 PM Report abuse rate up rate down Reply
hellsmagnet

let's actually look at the bible then ...

Psalm 137:9
“Happy shall he be, that taketh and dasheth thy little ones against the stones.”

the bible is an odd and confusing book which endlessly contradicts itself , telling you to stone someone to death and thou shalt not kill for example , same book . people who brainlessly say they believe in the bible think the statement makes them good people , leaving them feeling real good about themselves and their beliefs . ugh . this will get a thumbs down in the comments because to get a thumbs up here you have to say god bless phil robertson .
during the 1970s, robertson fled arkansas after he badly beat up a bar owner and his wife. robertson's wife, kay , persuaded the couple not to press charges in exchange for most of the robertsons' life savings.
he was never held responsible for his actions on this .

January 01 2014 at 2:53 PM Report abuse rate up rate down Reply
biffula

Yeah, I always love the fools that talk about freedom of speech when things like this happen. The constitution only makes sure that the government can't step on our rights to free speech. Private institutions and employers CAN. Wake up sheeple. People are stupid in the U.S. Explains why we're in such a morass.

January 01 2014 at 1:44 PM Report abuse +1 rate up rate down Reply
J & G Treasures

Well I a with you Gary. We have slipped and fallen such a long way that the progress that was made seem almost not worth it. This who article was bias and slanted, just like most of the media with it's progressivism agenda. God reigns on the just and the unjust, but what he does to show this country (all of us) His Grace and Mercy will be something to see. We became great, becuase He made us Great, but with out His divine favor we will not prosper.

January 01 2014 at 12:58 AM Report abuse rate up rate down Reply
smmsha

If you like duck dienasty, you are a stupid piece of trash PERIOD
Phil is a *ucked up piece of cra* , so is that family, so is the show, and so is A&E for showing it, sure it is supposed to be funny, making fun of trashy stinking scum from some s*ithole in the south, the only problem is , you inbreds dont see what garbage you are watching.

December 31 2013 at 12:09 PM Report abuse rate up rate down Reply
2 replies to smmsha's comment
SUNFLOWERgirl

You mad, bro?

December 31 2013 at 6:28 PM Report abuse rate up rate down Reply
biffula

Yes, because the North is such a utopia. If only everyone were as smart as say, New Yorkers or those from New Jersey, huh smmsha?

January 01 2014 at 1:45 PM Report abuse +1 rate up rate down Reply
Gary

Donna,
it is a sad day when a person get offended by what Phil Robertson said. His comments were not offensive but factual. Although his comments on a man's perference were crude, I see no hate in his words. everyone needs a refresher course on the rule book of life, The Bible.

December 31 2013 at 9:09 AM Report abuse +1 rate up rate down Reply
1 reply to Gary's comment
smmsha

you dont have a clue what GOD is about

December 31 2013 at 12:10 PM Report abuse -1 rate up rate down Reply
2 replies to smmsha's comment
SUNFLOWERgirl

You mad, bro?

December 31 2013 at 6:28 PM Report abuse rate up rate down
biffula

I'm sorry, but as evidenced from your previous comments, you are far from an authority too smmsha.

January 01 2014 at 1:46 PM Report abuse rate up rate down
Marc Sanford

Thank you for the information. Although you failed to mention religious beliefs as a reason that people cannot be discriminated against. Which he could have been considered to have happened to him since his comment about homosexuality, **********, and sex outside of marriage were directed towards what the bible says is sin as well as his own personal beliefs or the beliefs of the religion that millions of people know him to adhere to.
This is a subject that touched off a firestorm from the liberal community as well as the Christian community. You can tell the world that you are unbiased but ever single article is written by someone with their opinion on the subject. Stating that Phil has or has no right to freedom of speech. Stating that his comments that blacks in the south the HE witnessed first hand in his life were Godly and Happy at work being construed as racist (mind boggling to me personally). His opinion that homosexuality, **********, and sex out of marriage is wrong. His opinion that the body parts for a man-man sexual relationship was not meant to be and the a woman has more to offer, physically. Everyone has an opinion on those comments one way or another. No one is unbiased. Not one single person. That is exactly what a democracy is designed to foster, personal thought and opinions. Freedom to think for yourself. But when Phil Robertson stated that "[D]on't be deceived. Neither the adulterers, the idolaters, the male prostitutes, the homosexual offenders, the greedy, the drunkards, the slanderers, the swindlers - they won't inherit the kingdom of God. Don't deceive yourself. It's not right." He is getting that straight from the bible. Unfortunately his list could have been much, much longer. He is simply stating that you WILL NOT get into heaven without obeying God's laws and commands. And the bible never waivers on the subject of sex in that it is between a man and a woman. Period. That is not anyone's opinion. It is just as much a law as any in the Qur'an, Tripitaka, Analects, Gnostic scriptures, Tanakh, or Writings of Hubbard. Yet we are becoming more and more intolerant of people standing behind the Bible each and every day. So to surmise, you have shown your opinion with comments like "Let's say he spouts off his views now that he's back to a gay cameraman, a black assistant or a Buddhist grip." Obviously a negative comment that belittles Phil's comments as "spouting off". And throwing in there that once again Phil has a history of being racist against black so he will likely "spout off" an offensive remark. And now (yet another media person has added some non truth to it.) that Phil will offend a Buddhist somehow.
Just come right out and say it, you are a card carrying member of the United States of the Offended. For god's sake, the contortions and distortions people are using to try to demonize this man are ridiculous. We get that you hate him. Stop pretending the bigoted, ant-Chrstian conservative resentment is reasonable.

December 31 2013 at 6:30 AM Report abuse rate up rate down Reply

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