When is a “joke” so not funny that you lose your job? The Mississippi Court of Appeals gave some direction on that question, affirming the City of Meridian’s termination of a police officer for an inappropriate (arguably racist) Facebook posting. While on duty (but on a break), Officer Meador posted to his public Facebook page a photo of two chimpanzees laughing, adding the caption: “Earlier today, the mayor and the chief of police had a meeting” and a comment: “Something will probably be said, but I couldn’t resist.” He took down the photo soon afterwards. Given that both the mayor and chief of police of Meridian are African-American, some saw this as racially inappropriate. When confronted, Officer Meador stated that he meant it to be a joke, but recognized that people would know he was talking about Meridian’s mayor and police chief. After an investigation, he was terminated.
Although the opinion addresses Mississippi’s standard of review of decisions made in the civil service employment context and a technical issue with the termination notice, that is not what I am blogging about today. I think the most interesting aspect of the decision is the discussion of Officer Meador’s defense that the termination violated his First Amendment rights. The Court noted that the First Amendment protects a public employee’s right, in certain circumstances, to speak as a “citizen addressing matters of public concern.” The Meridian Civil Service Commission held that there was no public concern interest in the posting of the photo of the monkeys and therefore no protection. The Court of Appeals agreed and analogized the case to an Eighth Circuit decision rejecting a police officer’s argument that his First Amendment right to free speech was violated when he was suspended for wearing blackface to a Halloween party. Meador also argued that he had no racial intent in posting the photo, which the Court rejected, citing numerous cases that connect the use of monkey words and imagery as “without a doubt, motivated by racial animus.” The Court ultimately held that regardless of Meador’s intent, his posting was “inherently racially insensitive and/or demonstrated insubordination toward his superiors.” The posting was a violation of the Meridian Police Department’s Code of Conduct prohibiting expressions of racial prejudice and public criticism or ridicule of the Police Department. As such, the Court upheld the termination.
Hopefully, employee postings as problematic as this are rare. However, this decision, coupled with past NLRB actions, shows that managing social media can be a real headache for employers. Be sure to check your social media and computer use policies and train your employees on their terms. Also, many of these problems can be cut off at the pass by encouraging employees to be positive about their job and providing them non-social media outlets for their complaints about working conditions.