Earlier this month we were reminded, once again, about the sports, race, and free speech function at the junction. There has historically been something that brings together various forms of offensive language in the sports context. This time the focus was racially offensive language related to emerging NBA superstar Jeremy Lin. Although, occasionally, the words flow from an athlete (e.g. John Rocker) or an executive (e.g. Al Campanis) most often it is from the voice of broadcasters (Jimmy "the Greek” Snyder, Rush Limbaugh and now a contingent from ESPN). ESPN has issued an apology.
In the U.S. that legal line of what you can say about a topic is broad. In fact, in the biggest sports racial, homophobic, anti-Semitic and gender inappropriate gaffes of all time, no laws are broken. The power to formally sanction such speakers, as an employer, is in the terms of the employer-employee relationship and whether company policies against discriminatory language, morals clauses, the company employee handbook or other specific contract language provide any authority for the employer to take action. Overall, there is less of what we traditionally refer to as “free speech” on the air or other in professional settings.
There is certainly a strong argument that employers should respect individual freedom. However, employers should also draft agreements carefully to protect the company when "free speech" words may cast it in a less than favorable light.