Duck Dynasty's Phil Robertson Surviving Doesn't Mean You Can Say Anything At Work
First Amendment has no power in the workplace
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.
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’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.
Add Donna to your Google+ Circles.