Employer permitted to terminate employee who used offensive speech

An employer could lawfully terminate an employee who used a racial slur on Facebook, the U.S. 6th Circuit Court of Appeals (whose rulings cover all Ohio employers) recently concluded after applying a test that balances a public employee’s First Amendment right to free speech against the employer’s interest in maintaining an effective workplace.

Facts

Danyelle Bennett worked as an emergency dispatcher for the Metropolitan Government of Nashville (Metro). Her Facebook profile identified her as an employee of the Metro Emergency Communications Center (ECC) and Police Department.

A supporter of then-candidate Donald Trump, Bennett stayed up watching the 2016 presidential election returns until he was declared the winner, then posted a picture of the electoral map on Facebook. A stranger posted the following comment: “Redneck states vote[d] for Trump, niggaz and latinos states vot[ed] for Hillary.” She replied, “Thank god we have more America loving rednecks. Red spread across all America. Even niggaz and latinos voted for trump too!”

The next day, Bennett deleted the Facebook post after several people commented that they were offended. Nevertheless, Metro received numerous complaints.

Supervisor Bruce Sanschargrin and ECC Director Michele Donegan met with Bennett and were taken aback when she argued she was the real victim and that others weren’t truly offended but instead were “playing the victim.” They placed her on paid administrative leave while the matter was investigated.