In the United States, few topics cause as much consternation and combative reactions as race, especially race relations between Blacks and whites. At a time when, according to a 2019 survey by the Pew Research Center, only 23% of Americans believe that expressing racist views has become less acceptable, social media has become the new battleground among those who seek to call out perceived racist acts, those who seek to perpetuate racist attitudes, and those who seek to justify acts perceived by others to be racist.

According to tracking by the Pew Research Center, at the beginning of 2005 only 5% of adults in the United States used social media. By February 2019 that number had exploded to 72%. That's right, nearly 3 in 4 adults in this country use at least one social media site. So it is not particularly surprising that in a period of extreme political and social upheaval, adults are flocking to the internet to share their unfiltered thoughts with family, friends and—whether intentional or not—employers.

As a general matter, an employee's social media posts are not entitled to First Amendment protections against retaliation by her employer unless her employer is the government. As a government employee, her social media posts—no matter how vile—would likely be afforded First Amendment protection so long as the posts addressed "matters of public concern." However, even if a public employee's social media post is determined to touch on a matter of public concern, First Amendment protection is not without limits. Where the public employer establishes "that its legitimate interests outweigh the employee's First Amendment right," that speech may be curtailed. For example, in a federal wrongful termination case, Carter v. Transport Workers Union of America Local 556, a police officer in Las Vegas, Nevada, was terminated for making multiple racially biased social media posts including a post about the Black Lives Matter movement, referring to its supporters as "ghetto trash race baiting scumbags who blame their laziness and misfortunes on others and race baiting pieces of shit who should burn in hell." In dismissing the police officer's First Amendment retaliation claim, the judge concluded that the police department's interest in maintaining public trust in its officers and the department as a whole "outweigh[ed] the [police officer's] interest in [his] speech."

Since according to a 2020 Brookings Institute article only about 15% of the workforce in the nation can be characterized as public servants, the vast majority of employers are free to censure employees whose social media posts fail to comply with an employer's policies and/or standards. With that in mind, the owner of a Jimmy John's restaurant in Georgia was likely on sound legal ground in deciding to terminate an employee who posted a video with a "Happy 4th of July" caption on Snapchat showing himself being lynched by a co-worker with a noose made of bread dough.

But what about the employee who posts messages supporting or opposing social justice movements such as Black Lives Matter? If such posts cause other employees to feel uncomfortable, harassed or threatened, can an employer legally terminate the employee for the good of workplace morale? As with most legally thorny questions, the unsatisfying answer is: it depends.

As stated earlier, as a general matter private employers are not prohibited from terminating employees because of their social media posts—in other words, speech on social media by non-governmental employees is not afforded constitutional protection. However, before making an adverse employment decision, employers should consider all of the factual circumstances to avoid legal jeopardy.

Take the factual circumstances surrounding a federal discrimination case, Morris v. City of Columbia, involving Facebook posts made by a white Columbia, South Carolina, firefighter regarding a Black Lives Matter protest. While on duty, the firefighter made the following two posts on Facebook:

"Idiots shutting down I-126. Better not be there when I get off work or there is gonna be some run over dumb asses."

"Public Service Announcement:

If you attempt to shut down an interstate, highway, etc on my way home, you best hope I'm not one of the first vehicles in line . . . because your ass WILL get run over! Period! That is all…."

After a public outcry, the firefighter was terminated the next day for making "statements on social media threatening the lives of citizens" and for violating "the city of Columbia Employee Handbook." Two other white firefighters were also terminated for comments they made in response to the first firefighter's post. However, two Black firefighters were less severely disciplined for making Facebook posts similar to those of the white firefighters. A Facebook post by one of the Black firefighters stated, "So, because of the Black Lives Matter 'movement' Burger Kings around South Carolina have refused to service Firefighters. I have heard this from different Firefighters at different Burger Kings. I hope you bitches have insurance."

The white firefighter sued the city claiming retaliation for exercising his First Amendment rights and discrimination based on his race. The judge decided that there was sufficient evidence to allow the firefighter's discrimination case to continue because the firefighter was terminated for making similar social media posts as similarly situated Black firefighters who were not terminated.

The lesson here is that employers need to conduct a careful and thorough investigation before making a decision that could result in costly and protracted litigation. "Careful and thorough" does not have to mean slow, but knee-jerk reactions based upon incomplete information could do as much or even more harm as the offending social media posts—especially to a workforce already reeling from racial tensions. If an employer finds itself in a situation where it is being pummeled by allegations of an employee posting racist or racially insensitive messages, no one can fault that employer for immediately suspending the employee pending an investigation. Even if proof of the offending post is right there for the entire world to see, it is still a good idea to consult your labor and employment attorney so that you consider all of the legal ramifications before making an ultimate decision.

Antonio U. Allen is a senior associate at Pham Harrison. He is the current chair of the labor and employment section of the Tarrant County Bar Association. His practice focuses on providing litigation defense and counseling to employers of all sizes. He can be reached at [email protected].