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Employee activity on social media is a hot topic. The Sixth Circuit Court of Appeals recently addressed a case in which a university employee was denied opportunities following a Twitter tirade. The court affirmed that the university did not discriminate against the employee, did not violate the First Amendment, and upheld the university’s actions. This case serves as a reminder that employers can consider employees’ social media activity in making personnel decisions (but should do so carefully – as we blogged about here).
The Facts
In Patterson v. Kent State University, the employee, a transgender professor at Kent State, was denied certain opportunities after multiple tweets in which he insulted and directed profanity at colleagues and the university. GPat Patterson had requested to become the new director of the Center for the Study of Gender and Sexuality after the then-director stepped down. Administration informed him that the position was not yet open but proposed reducing his teaching load so that he could develop a new gender-studies major. He later inquired again about the director position, and administration reiterated that they were not sure what the position vacancy and filling would look like.
After this, Patterson took to Twitter. His tweets took place over a period of roughly three weeks. Some of these tweets included:
- Patterson criticized the “white ladies in charge, with [no] content expertise in this area” and called one a “usurper.”
- In response to the idea that insulting colleagues on social media was unprofessional, Patterson said “No the f*ck it isn’t.”
- “Academia is fundamentally racist, heterosexist, cissexist, ableist, classist & sexist.”
- Patterson referred to colleagues as “kind of translash” and stated “the minute I raise an equity issue, I’m suddenly read as a problem to be neutralized.”
- Patterson stated Kent State had “institutional transphobia” and “overt trans antagonism.”
- “I wish there’d have been a grad practicum called Oh, The Places They’ll Go: How to Navigate F*ckery as a Multimarg Faculty Member.”
- “Thanks for coming to my TED talk on how u can claim to be a trans ally all you want, but if you pull sh*t to bar trans ppl’s access to life chances, ur still a transphobe. Also, if ur a bystander who watches someone do this mess & don’t intervene? Also a transphobe.”
- Patterson stated “individual back-stabbery” was occurring, colleagues “see you as competition & want you to fail,” and “the whole damn system is killing you a bit more each day.”
- “I need you to understand the death-dealing & soul-murdering consequences that result from profoundly privileged administrators not grasping the insidiousness with which inequity & violence show up in multimarg faculty & staff workplaces. Y’all are quite literally killing us.”
- “Absolutely zero surprise it’s a poli sci prof. Forgive the generalization but that discipline is a sentient trash heap.”
- “I’d like to talk about the epistemic violence of a university attempting to create a [gender-studies] major, but blocking scholars, with whole PhDs in the discipline, from leading the effort. Please. Tell me another discipline where admins try to pull this sh*t. I’ll wait.”
The university later revoked its offer to lighten Patterson’s teaching load, did not ultimately elevate Patterson into the director position, and denied Patterson’s request to transfer from one campus to another. Patterson later filed suit, challenging these three actions. He brought claims of transgender identity discrimination, disability discrimination, retaliation, and violation of the First Amendment.
The Sixth Circuit’s Holding
The district court granted summary judgment to the university on all claims, and the Sixth Circuit Court of Appeals affirmed. Key to the Sixth Circuit’s holding was that the university had legitimate, nondiscriminatory reasons for its decisions. The court emphasized that the record clearly showed Patterson’s tweets were disparaging, contained profanity, and attacked colleagues, which not only created a toxic work environment but also violated the university’s policies. The court held that these tweets “easily provided reasonable grounds—having nothing do to with sex or gender—for disciplining or reprimanding an employee.”
As for his First Amendment claim, the court affirmed that his speech was not protected under the law because (1) the speech did not touch on a matter of “public concern” and instead involved personal attacks on colleagues, and (2) the university’s interest in education and effective public service outweighed Patterson’s interest in, as the court called it, “trash talk.”
The Takeaways
If an employee’s speech is creating a problem for your work environment, you may be able to do something about it. We blogged here about tips for navigating the tricky situations when you learn of an employee’s potentially problematic speech. Gather the facts, review your policies, talk to the employee, and, as always, consult with you labor and employment counsel.
