Diversity Diva

June 9, 2014

We have a right to speak our minds — but not to escape consequences

Social media expands “the crowd” that can observe opinions and behavior that can turn into firing offenses.

It truly is a different world we live in.

Privacy — and the good judgment that accompanies privacy — has a whole different meaning in a world where people have the ability to freely air their opinion on any topic they choose, in any way they choose, with the ability of the whole world to see it. Within seconds.

Brian Zulberti, a 31-year-old Delaware lawyer, started a hunger strike recently to protest the issue of employees being discriminated against for what they put on social media.

Zulberti believes that, for example, an employee shouldn’t be fired for having posted on Facebook a picture of himself having a beer.

Many people would rush to agree with Zulberti because many can’t stand the thought of anything they do privately affecting their job. But honestly, these are mostly the same people who don’t understand that legally, in most of America, it’s legal for an employer to fire an employee for any reason so long as it’s not for reasons spelled out as discriminatory in employment law and it doesn’t violate an employment contract. It’s called being an “at will” employee, and that is what the majority of Americans are.

However, most bosses or supervisors probably won’t think twice if an employee has posted a photo of himself having a beer. But what if the person is a man who works for a substance abuse treatment facility where that is against policy? Or of a medical professional or airline pilot right before a medical procedure or a flight that she was assigned to? Or maybe it’s not one photo but several photos of drinking by an employee who has a highly sensitive job or one involving a great deal of judgment or trust?

With every example I used, it’s all relevant if you have your settings set for the world to see. (If the setting is private and the employer has unethically seen your private life, that’s a different issue.)

Which gets back to why I’m not a supporter of Zulberti’s dramatic act of civil disobedience.

He wants it both ways.

He wants employees to be able to publicly say any kind of offensive, discriminatory, crude, unprofessional comment in public arenas — because that is what social media is — and be immune from job consequences.

Yet he doesn’t want the people he works for to have an equal ability to act on the employee’s public comment.

I’m not advocating unchecked power of employers to police the private, off-duty activities of their employees. Of course not.

But if an employee, for example, wants to use a racial epithet in a public comment on a widely read national message board — using his real name — then why should a boss who sees that be legislated into forgetting that he has seen it?

It’s true that we live in a different world of privacy from what many Americans over a certain age are used to. But all that really means is that the “crowds” witnessing questionable actions can be much larger now.

If a man stood in the middle of the town square 30 years ago and shouted horribly offensive things about a group of people, for example, he took his chances that his boss would hear it, or hear about it, and fire him.

Now, 73 percent of online adults use social media, according to Pew Research.

So your town square has millions listening to you.

And contrary to what most people think, the First Amendment is not a shield protecting all private expression of opinion from private consequences. It bars action by the government, not by private employers.

The law does offers protection for private activity that is “concerted protected activity” about a job, such as union activity. And anti-discrimination laws are designed to protect members of certain groups from being fired simply because they are older, a racial minority, disabled, or a member of whatever other group the law protects. But those laws don’t protect anyone from being fired “for cause” — whether that’s doing something stupid, prohibited by contract or work rules, or otherwise deemed detrimental to a company.

So when you publicly stand in your town square and shout, you shouldn’t be too surprised when there are consequences. Your bullhorn can be heard by millions now.

Send questions to Michelle T. Johnson on Facebook at www.facebook/diversitydiva.

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