Today I bring you another example of how an employee does not forego their freedom of speech when working for a private employer. But, employees who speak out are not immune from the consequences of their speech either.
In this case, racism.
The plaintiff worked for six years as a line supervisor for the defendant. Her employment was at will.
In June 2020, the plaintiff publicly shared an image on Facebook comprising two juxtaposed pictures. In the top picture, several monkeys are on and around a car. Several African Americans are on and around a car in the bottom picture. Some of the plaintiff’s coworkers did not like the post. At least three of them complained about it to the defendant’s associate relations department. The defendant then fired the plaintiff.
Well, not so fast.
The plaintiff later sued, claiming wrongful termination. Specifically, she posited that her firing violated public policy. Precisely, she alleged that the free speech protections embodied in her state’s constitution afforded “every citizen [the right to] freely speak, write, and publish his sentiments on all subjects.” Thus, the court had to decide whether the free speech protections in the Ohio Constitution provide a basis for the government to insert itself into the relationship between a private employer and an at-will employee.
Indeed, the plaintiff could not direct the court to a single case in which a court has held that the free speech protections in the Ohio Constitution can serve as the basis of a wrongful termination in violation of public policy claim. And the court couldn’t find one either — at least not for private employers. Conversely, two Ohio federal courts blew up the plaintiff’s theory, with one of them noting that “the prevailing view among the majority of courts [across the country] addressing the issue is that state or federal constitutional free speech cannot, in the absence of state action, be the basis of a public policy exception in wrongful discharge claims.”
Consequently, the court, in this case, also concluded that, in the absence of state action, the free speech protections of the Ohio Constitution do not provide a basis for an at-will employee to raise a wrongful termination in violation of public policy claim in this case against a private employer.