Can I be fired for what I said at lunch?

I was on a lunch break (off the clock) and off work premises at a restaurant with other co-workers, and someone made a racial remark. Can someone be fired for this? What happened to freedom of speech? This doesn’t seem right to me

Posted 05-27-2014

Ann Kiernan replies:

Free speech does not mean you can say whatever you want, whenever you want, with no consequences. After all, as the Supreme Court said in a case almost 100 years ago,”The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

Remember that the Constitution is a limit on the powers of government, and that what the First Amendment does prohibit is action by the government (federal, state, county, municipal) restricting speech. That constitutional guarantee simply does not apply to the private sector. If racist off-duty remarks or actions affect the workplace, the employer has the right—indeed, the obligation—to take corrective action. (Just look at Los Angeles Clippers owner Donald Sterling, who is likely to lose ownership of the NBA team because of his racist remarks to his mistress!)

Thanks for the interesting question.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.