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In Bennett v. Metropolitan Government of Nashville & Davidson County, Tennessee, the Sixth Circuit Court of Appeals (which does not have jurisdiction over Illinois) ruled that a public employee’s termination for using a racial slur on social media in reference to the 2016 presidential election did not violate the First Amendment. Because the speech pertained to a matter of public concern (i.e., the election), the court had to determine whether the employer’s interest in promoting the efficient operation of public services outweighed the employee’s interest in commenting on the matter.

The employee was terminated from her employment as an emergency dispatcher for the Metro Government Emergency Communications Center (ECC) in 2016 after posting a racial slur on her publicly accessible Facebook page when discussing the results of the presidential election. Her Facebook page identified her as an emergency dispatcher at the ECC. Many of the employee’s co-workers and members of the public saw the post prior to its deletion and complained to the ECC administration and the mayor’s office. The ECC determined that the employee violated three Civil Service Rules and terminated her following a due process hearing. The employee filed suit against the ECC, alleging violation of her First Amendment rights.

Though the employee won her case at the trial-court level, the federal appellate court reversed. In determining that the discharge did not violate the First Amendment, the appellate court utilized a balancing test to determine whether the employee’s interest in commenting on matters of public concern outweighed the government employer’s interest in promoting the efficiency of its services. When the court applied the balancing test, it took into consideration whether the statement (1) impaired discipline by superiors or harmony among co-workers, (2) had a detrimental impact on personal loyalty and confidence in close working relationships, (3) impeded the performance of the speaker’s duties or interfered in the regular operation of the enterprise, or (4) undermined the mission of the employer.

The court found that the first factor weighed heavily in favor of the employer because the employee’s coworkers voiced their dissatisfaction with the comment, and there was need for a counselor to address office tension for nearly a month after the post. The court decided the second factor also heavily favored the employer because coworkers had voiced concerns about being able to work effectively with the employee and wondered whether she could be relied on to properly assist racial minorities when they sought emergency services. The third factor was a closer call because there was little evidence that the employee’s speech would impact the quality of her work. The fourth factor also weighed heavily in favor of the employer because the racially-charged comment detracted from the public’s perception of the ECC as an unbiased public service.

Public employers should be aware that employees’ inappropriate social media posts can be grounds for termination, but they should proceed cautiously and discuss the First Amendment implications with legal counsel first.

Should you face a similar situation involving employees’ social media use, contact an attorney in our Labor/Personnel practice group.

Source: Bennett v. Metro. Gov’t of Nashville & Davison Cty., Tennessee, 977 F.3d 530 (6th Cir. 2020)