In the early morning hours of May 29, Roseanne Barr, the namesake of the sitcom “Roseanne,” learned the hard way that freedom isn’t free. At 1:45 a.m., she tweeted what many people considered an unprovoked racial slur. Within hours, ABC canceled the renewal of her hit show.

But how could that be? The tweet happened on Ms. Barr’s own time, and had no direct connection to her work with ABC. Some observers could think she is subject to different rules because she is a celebrity with a TV show, but they would be mistaken. The same rules that allow ABC to protect its reputation from employees’ off-the-clock conduct protects others’ workplaces as well.

A stubbornly persistent myth among employees is that so long as they are professional and respectful at work, they can behave any way they want outside of work and their bosses cannot do anything about it. Most often, we hear people citing some vague understanding of the First Amendment of the Constitution and its protection of free speech. Logically and legally, that makes no sense. Legally, the First Amendment (grossly simplified) only protects citizens from imprisonment or punishment from their government for expressing opinions.

As a general rule, the First Amendment does not apply to the private workplace. Businesses are free to fire employees who use their freedom of speech in a reckless or irresponsible manner. Logically, this makes sense. Nobody cites “freedom of speech” when their spouse leaves them for saying something inappropriate, or for a friend shunning them for being offensive.

However, freedom in the workplace does not come without limitations. It is important for private businesses to take into account the effects of anti-discrimination laws such as Title VII, retaliation laws and other local laws. Although not directly associated with the First Amendment, the aforementioned are protections that govern employees’ ability to speak freely.

The nature of what is considered offensive expression changes and is a reflection of larger societal and historical trends and issues. Accordingly, the demand to determine how to maintain a nondiscriminatory environment that is both conducive to learning and beneficial to the business is an ever-present and ongoing challenge for employers. One of the main threshold questions is whether a certain behavior constitutes “speech” or “expression” protected by the First Amendment, or “conduct” that is not protected.

Public employees who work for the government are protected by the First Amendment. As a result, public employees can exercise certain First Amendment rights, but the protection is often limited to speech surrounding matters of “public concern.” To find relief under the First Amendment, an employee must prove that his or her interest outweighs the government’s interest in having an effective workplace environment. If, however, a public employee is acting within the scope of his or her employment and not as a member of the public voicing a matter of public concern, the employee is not entitled to First Amendment safeguards.

Private employers, quite conversely, have the freedom to create policies that define the culture they seek, as well as the ability to terminate employees who are unwilling to conform. One caveat: this policy cannot discriminate and must be applied consistently and across the board to all employees. Most employees at private organizations are “at-will” and can be terminated without cause, provided that the termination is not retaliatory or discriminatory.

One area where free speech rights have come into play involves on-the-job political protest, such as in the NFL with players taking a knee for social justice. Recently, the NFL approved a league policy surrounding the protests, under which teams can be fined if their players are on the field or within the sidelines but do not stand during the anthem. As a private business, the NFL is entirely within its legal right to implement such a policy. This is yet another example of how free speech is not really free, especially within the realm of private business.

All employers must be cognizant of the power of speech and the necessity for workplace policies. Employers should create policies related to conduct and speech that extend beyond work hours and office boundaries, including but not limited to its employees’ use of social media. As a reminder, Ms. Barr tweeted when she was off the clock, but this offered her no protection against disciplinary action. And while company policies are seeing a greater incorporation of accountability, more employers need to get on board.

Handbooks are an excellent means of providing employees with explicit and precise policies.  However, it is not enough for employers to have policies on paper. These policies must be implemented on a daily basis to ensure consistency in the treatment of employees. The existence of such policies is mutually beneficial for employees and employers. For the former, definite expectations are set. For the latter, there are specific policies to rely on in order to avoid litigation that may arise in relation to retaliation, disparate treatment or discrimination suits.

By taking simple steps, employers can set clear expectations early and avoid losing good talent to bad conduct.

Donovan Bonner is an attorney at Barran Liebman LLP. He provides employment advice and litigation to private and public entities of all sizes and industries, including higher education institutions. Contact him at 503-276-2175 or dbonner@barran.com.

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The Americans with Disabilities Act (ADA) prevents privately owned businesses that serve the public from discriminating against individuals with disabilities. According to the U.S. Department of Justice, “under the ADA, businesses that serve the public generally must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go.”

On Feb. 22, the Oregon Court of Appeals upheld a $60,000 award to a customer who was denied access to a Eugene convenience store with her service dogs. The customer, who has both physical and mental disabilities, attempted to enter the store when the owner and employees refused to allow the customer in with her service animals. Both dogs are trained to assist with the customer’s disabilities.

Despite having a sign outside the front door saying, “Service dogs welcome,” the owner insisted that the dogs weren’t service animals. The business argued that one of the dogs was still in training and did not qualify as a service dog. The Court of Appeals disagreed with the business and determined that the ADA did not require the dogs to be licensed or fully trained to be service animals. The court concluded that the dogs were service animals under federal and Oregon law.

In Oregon, service animals are not considered pets. People with disabilities may bring service animals into all areas where customers are normally allowed. Those places include restaurants, retail stores, banks, hotels, theaters, libraries, parks, hospitals and other spaces open to the general public. Service animals cannot be refused entry because of a “no pet” rule. The ADA defines service animals to be only dogs, and under certain conditions, miniature horses. No other animals can be “service animals” under the ADA; there is no such thing as a “service peacock.” Oregon law similarly constrains service animals to be dogs (or “other animal designated by administrative rule”).

Service animals are required to be trained to perform tasks that directly relate to an individual’s disability. However, there is no formal certification process for an animal to be recognized as a service animal (although there are numerous services that will “certify” a service animal). Importantly, Oregon law recognizes service animals to include animals who have not yet completed their training. The only requirement is that the owner must be able to maintain control of the service animal at all times.

The ADA only allows an employee to ask two questions: 1, “Is that dog (or miniature horse) a service animal required because of a disability?” and 2, “What work or task has the dog (or miniature horse) been trained to perform?” The ADA and Oregon law both prohibit questions about an individual’s disability or documentation proving the animal is a service dog. In addition, businesses cannot charge admission of the animal.

Emotional support animals are not service animals, and do not have to be accommodated. Service animals must be trained to perform some task, and emotional support animals, by definition, do not perform a task.

But what about employees with service animals? The ADA also prohibits discrimination against individuals with disabilities in employment, and requires reasonable accommodation at the employee’s request. Permitting an employee to bring his or her service animal is a form of reasonable accommodation, though an employer may forbid a service animal at work if it poses an undue hardship or disrupts the workplace.

Although emotional support animals or companion animals do not qualify as service animals under the law, may an employer nonetheless be required to allow use of such an animal as a reasonable accommodation? It’s possible. Employers must evaluate the use of a companion animal under the same conditions as a service animal (and other requests for accommodation) and engage in the interactive process with the employee who is requesting to bring the animal to work as an accommodation.

But what is an employer to do if, after a request to bring a service animal to work is made, another employee is allergic to dogs or afraid of dogs? This balancing act can be tricky for employers, because both employees may need to be accommodated. Neither allergies nor fear of dogs is a valid reason for denying access or requests for accommodation to people using service animals; however, the employer may need to accommodate those who have an allergy or phobia related to the service animal as well. This may take the form of allowing employees to telecommute or work different shifts, placing employees on different floors, or providing one of the employees with a private workspace, if feasible.

So how can employers keep this straight? Employers should have practices in place to comply with federal and state disability laws regarding service animals, and educate their employees on what can and cannot be asked when encountering animals at the business. Employers should also ensure they properly engage in the interactive process to assess requests from employees for accommodations that involve animals coming into the workplace. When in doubt, employers should consult their legal counsel to develop policies and ensure compliance with laws surrounding the use of service animals or emotional support animals for customers as well as employees, because mistakes can be costly.

Donovan Bonner is a law clerk and future associate with Barran Liebman LLP. He supports attorneys handling employment advice and litigation. Contact him at 503-276-2175 or dbonner@barran.com.

Sean Ray is an attorney with Barran Liebman LLP. He represents management in employment matters and defends employers against a variety of claims. Contact him at 503-276-2135 or sray@barran.com.

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