Two of the biggest employment law fallacies we encounter relate to employees’ beliefs about the impact of their off-duty behavior on their careers. First, we see situations where the workers claim that employers have no right to react to off-duty conduct. Second, many employees believe that the free speech guarantees of the First Amendment limit their employers’ ability to discipline them for non-work related comments. Last month, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) rejected an appeal from an executive who claimed that he was terminated based on his race following comments made on his podcast.

In Krehbiel v. BrightKey Inc., the plaintiff made a series of comments on his podcast, criticizing diversity initiatives, as well as his anti-feminist and anti-transgender beliefs. Employees at the defendant's company organized a walkout to protest these comments, and the company terminated the executive’s employment shortly thereafter. He sued, claiming that he was fired due to his race (white) based on pressure placed on the defendant by the coworkers who allegedly objected to his comments because of his race.

The Fourth Circuit rejected these arguments, affirming dismissal of the lawsuit by the trial court. The Fourth Circuit panel concluded that the plaintiff failed to introduce sufficient evidence showing that the superiors who fired him shared the same alleged racial bias of which he accused the protesting coworkers.

First year law students learn that the First Amendment only protects individuals against government action and not a private employer’s response to their comments. In addition, absent a specific protected activity, employers are free to take disciplinary action against employees based on conduct unrelated to work. While most employers are hesitant to involve themselves in their employees’ lives outside work, behavior or comments that impact the business’ operations commonly result in negative consequences for those workers.

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