Disciplining Employees for Offensive Private Speech:  Connecticut Employers Must Show Workplace Disruption
Offensive Social Media

Employers in Connecticut need to be aware that Connecticut law makes the free speech provisions of both the First Amendment to the United States Constitution and those of the Connecticut Constitution applicable to non-governmental employers.  The U.S. District Court of Connecticut recently ruled in Mumma v. Pathway Vet Alliance, LLC, that an employee cannot be terminated for a personal Facebook post, even if it violates the company’s policy on anti-discrimination, unless the employer can show a real concern that the post would cause (or that it actually did cause) a disruption to the workplace.

Ms. Mumma worked for the defendant as a support staff talent acquisitions recruiter.  Her principal job duties were to interview candidates who applied for posted positions and, if they met set criteria, to pass them on to the manager.  Mumma described herself as a “politically Christian woman.”  She claimed that she saw other co-workers and one of the company’s founders posting what she considered to be “politically charged comments” on their personal social media accounts, and took this to mean there was nothing prohibiting her from doing the same.  The incident at issue was Mumma’s posting on her personal Facebook page of a meme under a banner reading “No Wonder Liberals Are So Confused” that contained photographs of eight different political and cultural figures with a single word under each picture.  These included, for example, a picture of former NAACP Spokane chapter president Racheal Dolezal with the caption “Black,” and former President Bill Clinton with the caption “Husband.”  Most important to the case at hand were pictures of Senator Elizabeth Warren with the caption “Indian,” and of Caitlyn Jenner with the word “Woman.” 

Mumma’s supervisor became aware of the Facebook post and felt that the Jenner and Warren posts could be seen as offensive to protected classes of people.  She also received complaints about the meme from some other employees.  The supervisor said she was concerned as to whether these employees would be able to continue to work with Mumma, but at her deposition admitted that none of the employees expressed to her that they would not be able with work with Mumma moving forward.  Management also was concerned that the Facebook post (which was a public post) could be seen by potential job candidates and have a negative impact on hiring.  Mumma’s supervisor asked her to make the post private, but Mumma declined to do so.  The company, therefore, decided to terminate Mumma’s employment.  Different witnesses provided slightly varied reasons for the termination (such as stating it was because the meme violated the workplace rules or that it simply did not reflect the company’s values of diversity, equity and inclusion) but all were clear that the meme was the reason for the termination.

The claim at issue in the case was brought under Connecticut General Statutes Section 31-51q, which extends the protection of rights of free speech under the federal and Connecticut constitutions to employees in private workplaces.  In order to establish a claim under this statute, an employee must show that (1) she engaged in constitutionally protected speech, (2) her employer took an adverse action against her, and (3) there was a causal relationship between the protected activity and the adverse action.  In order to be protected, the speech at issue must be made as a citizen on matters of public concern, as opposed to being made by an employee on matters of personal interest.  But, proving only these three elements is not sufficient.  In addition, the employee’s exercise of her free speech rights must not “substantially or materially interfere with [her] bona fide job performance or the working relationship” with her employer.  In Mumma, the Court denied the employer’s motion for summary judgment (i.e., judgment without trial), finding that there were factual questions that needed to be answered by a jury as to whether the plaintiff was terminated over a real concern for disruption to the workplace that might flow from her Facebook post, or whether she was actually terminated simply because her employer was offended by the content of her speech.  The Court seemed troubled by the varying reasons given by different management employees for the termination, as well as by the lack of any evidence of workplace disruption that flowed from the Facebook post.  The Court, therefore, denied summary judgment, finding that the case needed to be decided by a jury.

Unlike most other states, Connecticut law imports Constitutional free speech rights, which generally only apply when the government takes action against someone (including government employees) for their protected speech, to private employers.  Here, the Court recognized that an employer may discipline an employee for speech, even speech that occurs outside of work time, that substantially and materially interferes with an employee’s job performance or working relationships.  In this case, however, there were factual issues that prevented the Court from granting summary judgment.  Employers in Connecticut must be aware that, unlike other states, employees at private workplaces generally cannot be disciplined for speech that would be protected by the federal or state constitutions.  Such discipline can only be issued if such speech is likely to, or actually does, lead to a disruption in the workplace.

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