On May 29, Roseanne Barr posted a tweet comparing former Obama adviser Valerie Jarrett to an ape. ABC’s reaction was swift and decisive: it fired Barr and cancelled her show.
ABC’s decision led to pontification from various pundits and Twitter personalities arguing that Barr’s “humor” was somehow “free speech” protected by the First Amendment.
But even if Barr was exercising free speech when she posted her tweets, that has no bearing on ABC’s lawful right to fire her. ABC is a private employer, not the government, so the First Amendment did not prevent it from taking action based on employee speech.
The only exception to this arises when a discharge is somehow compelled or influenced by the state, such that it constitutes “state action.” (For example, in Rendell-Baker v. Kohn, the Supreme Court recognized this exception but concluded that a private school’s termination of an employee was not state action even though the school was substantially funded and regulated by the state.) In the case of Barr, there’s no suggestion that ABC’s action was state action.
Likewise, other federal laws do not prevent a private employer from firing an employee who expresses racist views or joins racist organizations. For example, in Bellamy v. Mason’s Stores, Inc., the Fourth Circuit rejected an employee’s claim that federal antidiscrimination and equal protection law protected him from termination based on his membership in the Ku Klux Klan. Similarly, in Slater v. King Soopers, Inc., a court dismissed a Title VII claim based on an employee’s membership in the KKK, holding that the KKK is “not a religion.”
So in general, the answer to the title question posed above is an easy one: yes, a private employer can absolutely fire an employee for racist tweets.
But while Barr’s case might be simple, it’s not hard to think of cases where the potential governmental role in a private employer’s firing of an employee for her beliefs makes the issue a bit trickier.
For example, if Samantha Bee were fired because of the language she used to describe Ivanka Trump, or if an NFL player were fired for kneeling during national anthem protests, could they claim that the discharge constituted “state action” because those actions occurred at least in part because of President Trump’s tweets stating that they should be fired? At least one commentator thinks it’s a possibility.
Or what if the employee’s conduct is not a racist “joke” but rather, political or religious activity? In one case, Peterson v. Wilmur Communications, an employee successfully argued that the “Creativity Movement”—a group with white supremacy as its central tenet—was a religion, such that the employer violated Title VII when it demoted him based on his membership in the Movement.
In addition, some state laws, such as the District of Columbia Human Rights Act, prohibit discrimination by employers based on off-duty political views or activities (although the D.C. law has been read narrowly to exclude protection for activities like belonging to supremacist groups or supporting laws banning same-sex marriage).
Thus, before taking any action against an employee for statements or activity outside the office, employers should think carefully about whether they might be running afoul of laws barring discrimination based on religion or political affiliation.
Employers can also be proactive by adopting social media policies that make clear employees can be held accountable for content they post on the Internet, even on their own time. In adopting such policies, however, employers should be careful not to infringe on employees’ rights to engage in protected concerted activity under the National Labor Relations Act.
This is an issue that will certainly continue to be one to watch, especially as more employees use public and filter-less forums like Twitter as their primary method of communication.