Eugene Volokh, Washington Post, December 18, 2014

Lisa Worf (WFAE, Charlotte) writes about the firing of Charlotte, N.C., fire investigator Crystal Eschert:

Eschert is white. She referenced reports of another police shooting near Ferguson that said a white person was the victim. She wrote on her personal Facebook page: Where is Obama? Where is Holder? Where is Al Sharpton? Where are Trayvon Martin’s parents? Where are all the white guy supporters? So WHY is everyone MAKING it a racial issue?!? So tired of hearing it’s a racial thing. If you are a thug and worthless to society, it’s not race–You’re just a waste no matter what religion, race or sex you are! Eschert did not identify herself as a Charlotte Fire Department employee, but she was fired in September after someone emailed the post to city officials.

[UPDATE: Eschert also posted a message quoted from a Web site called “Law Enforcement Today”: “Want to know where racial tension and cultural divide comes from? 794 law enforcement officers have fallen in the Line of Duty since B.H. Obama took office, with no special recognition from the White House. A man robs a convenience store and assaults a cop; the White House sends three representatives to his memorial service.”]

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Eschert is considering suing. The First Amendment rules related to government firing of employees for their speech are vague, though I think that on balance Eschert is likely to prevail.

Apropos of this and the earlier post Marquette University tells employees: “Opposition to same-sex marriage” could be “unlawful harassment,” here are some related thoughts I posted back in 2010. They stem from President Obama’s call for people to talk about race around “water coolers,” something that is of course even more perilous than talking to your friends on your own Facebook page. But the broader point that some government leaders call for a national conversation about race while other government policies make talk about race extremely perilous strikes me as similar.

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Yesterday [i.e., back in 2010] I heard about President Obama’s National Urban League speech on NPR, and one particular item struck me. (I’m sure it’s not the most important item, but it’s just the one about which I have something to say.)

We should all make more of an effort to discuss with one another, in a truthful and mature and responsible way, the divides that still exist–the discrimination that’s still out there, the prejudices that still hold us back–a discussion that needs to take place not on cable TV, not just through a bunch of academic symposia or fancy commissions or panels, not through political posturing, but around kitchen tables, and water coolers, and church basements, and in our schools, and with our kids all across the country.

I certainly agree that it would be good for people to discuss racial issues in a truthful, mature, and responsible way. But I’m pretty sure that discussing such issues around “water coolers” is pretty dangerous advice, at least if one really wants a discussion in which people aren’t afraid to air their views.

1. To begin with, any arguments that some might see as racist could lead to complaints and even lawsuits about a supposedly “racially hostile work environment”; and while such lawsuits are hard for plaintiffs to win, no employer wants to have to fight them, and no employee should want to have his speech be the subject of such suits.

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When the legal standard is as vague as that the speech, together with other statements by other people at other times, is “severe or pervasive” enough to create a “hostile, abusive, or offensive work environment” for the plaintiff and a reasonable person based on race, the cautious employer is likely to want its employees to likewise be very cautious in this field. Alan says around the water cooler that the underrepresentation of blacks in some job category stems from white racism. Betty responds–perhaps thoughtfully, or perhaps out of anger at what she sees as Alan’s exaggerations or overgeneralizations–that the real reasons might be failings in black American culture, or even genetic differences.

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2. Moreover, statements that could be seen as involving race-based generalizations could be later introduced as evidence of racial animus in a discriminatory discharge/demotion/failure to hire/failure to promote case, if the speaker has a role in the hiring process. Recall the Alan-Betty exchange: When Alan is later discharged, and sues for race discrimination, he argues that Betty had some role in the discharge decision, and that Betty’s statement is evidence that she likely discriminated against him based on race.

Again, it’s not clear that such a statement would lead to a victory in court; the jury might not find it probative enough, and in any case it might in some situations be seen as insufficient evidence under the “stray remarks” doctrine. But the risk is sufficient, I think, that many an employer will immediately discipline Betty for her statement, and that at the very least people like Betty would be reluctant to express their true views, either at work or elsewhere.

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3. Finally, this isn’t just a matter of liability: Allegedly racist comments can yield bad publicity for the employer, can waste a huge amount of employer time and energy on internal investigation and discussion, and can cause morale problems that interfere with productivity. Even without the risk of litigation, many people have long been cautious about talking about matters that their listeners might feel strongly about a deep and personal level–race, religion, politics, sexuality, and more. Nonetheless, it seems to me that the risk of vast liability has been an important factor in dramatically increasing the cost of expressing one’s candid views about race (especially at work), and in deterring people from expressing those views.

4. What strikes me as most interesting about this phenomenon–other than the practical unsoundness of President Obama’s suggestion–is that the very fight against discrimination and prejudice that the President is trying to promote in his statement has made it much harder to have candid discussions about race. We see the same happening in some measure as to candid discussions about sexual orientation. (The early phases of the gay rights movement also made it socially easier to have such candid discussions, but as sexual orientation discrimination law is beginning to follow the path of racial discrimination law, such discussions are becoming more professionally and legally perilous.) That might be an inevitable and acceptable consequence of that fight. But I don’t think that we can ignore it, and suggest that more discussion–at least around the water cooler–is going to help solve the problem.

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