In the aftermath of the murder of Charlie Kirk this past September, both traditional media and social media platforms were abuzz with comments and opinions about the conservative activist and media personality’s life, death, values, and beliefs. Not surprisingly, comments of all kinds found both support and opposition … and generally not of a moderate nature.
Regardless of how you may feel about him, Kirk was no doubt a polarizing figure, perhaps more so after his death. Some of his comments addressed persons belonging to various protected classifications. And naturally, persons within those classifications disagreed with him. As such, a correlation may exist between persons making comments critical of Kirk and inclusion within a protected classification. This implicates equal employment principles. It is not a novel concept. The U.S. Supreme Court has endorsed the concept that traits or behaviors may be inextricably linked to protected classifications and thus protected. See e.g., Bostock v. Clayton Co., Georgia, 590 U.S. 644 (2019).
Some, including Vice President JD Vance, specifically encouraged members of the public to report those who made certain types of comments regarding Kirk. “Call their employer,” Vance said. And this type of reporting happened. Employers have received complaints from employees, clients, and even members of the public at large.
What should or can employers do in these situations? It depends, in part, on the type of employment involved. And it can have consequences.
Media coverage of terminations due to Kirk commentary tends to focus on public employers, particularly public educational institutions
My alma mater, Auburn University, a public university located in Auburn, Alabama, terminated an unidentified number of employees for “insensitive” comments in the aftermath of Kirk’s death. The University’s president released a statement indicating that “[a]ctions that endorse, glorify or trivialize violence … have no place at Auburn and fall short of the community of respect and integrity that we work hard each day to uphold.” Two fired employees – one a former landscape supervisor, one a former professor – have sued Auburn University in federal court for wrongful termination in violation of First Amendment speech rights and seek punitive damages.
I still read The Plainsman, Auburn University’s student newspaper, on a semi-regular basis. As a result, these cases have been on my radar. But a quick internet search will confirm the existence of various wrongful termination suits filed by employees terminated for expressing opinions regarding Charlie Kirk. Many of these lawsuits — including the more “high profile” lawsuits covered by the media — have been filed by public employees against their former public employers.
Public and private employees have significantly different speech rights
There is a significant distinction between public sector and private sector employment. Those employed by public employers (governments, public educational institutions and agencies, etc.) generally enjoy “free speech” rights secured by the First Amendment to the U.S. Constitution. These rights are not without limitation, but they generally protect speech made in a private capacity that does not disrupt the workplace. Public employees have some protections when it comes to being disciplined or terminated due to speech.
Private employees do not enjoy these same protections. The First Amendment is interpreted as regulating the conduct of the government, as well as governmental or so-called “public” employers. The First Amendment does not place restrictions on a private employer’s ability to address an employee’s speech — even political speech. While some states have laws that extend similar protections to private employees, Oklahoma does not. Nor does Oklahoma have an “off-duty conduct” statute that protects employees from adverse action for lawful conduct that occurs while they are off-duty. Private employees in Oklahoma are generally at-will employees — they may be terminated for any lawful reason, or no reason at all. They are subject to discipline for engaging in speech that a private employer finds disruptive, or even just distasteful.
This is not to say that a private employer’s response to employee speech is immune from liability. Employment discrimination is prohibited under both federal and Oklahoma law. Private employers may not discriminate against an individual with respect to the terms, conditions or privileges of employment because of that individual’s race, color, religion, sex, national origin, etc.
Employment actions may be challenged as unlawful “disparate treatment,” i.e., the individual was intentionally discriminated against because of their membership in a protected classification. These types of claims often involve allegations that an individual within a protected classification was treated differently than an individual outside that protected classification who engaged in substantially similar acts or omissions that are claimed as the basis for termination. If a private employer chooses to terminate an employee for speech deemed disruptive or as condoning violence, it must exercise that discretion in the same manner for any substantially similar speech, including speech regarding the same topic that falls on the opposite end of the political spectrum. Failure to do so could give rise to liability for discrimination.
Employment actions may also be challenged as having an unlawful “disparate impact,” i.e., a rule or policy that is neutral on its face has a disproportionate adverse effect on persons belonging to a protected group. These types of claims typically involve allegations that a policy was applied or enforced in a manner that resulted in a disproportionate rate of adverse employment action affecting persons within a protected classification. To the extent a private employer targets speech on one side of the Kirk debate, its enforcement may disproportionately impact persons belonging to protected classifications. This could, again, give rise to liability for discrimination.
In addition, private employers who choose discipline for speech activities are arguably creating a “precedent” which will be relevant to their employment decisions going forward.
Perhaps the debate and controversy regarding Charlie Kirk has slowed a bit, but in today’s political environment something else will surely fill that void. Employers — both public and private — should act cautiously when considering adverse action in response to speech, and must recognize the impact that such decisions have on persons in protected classifications.
