Was Firing the Woman Who Flipped Off the President Too Harsh?

Lewd Black Lives Matter critic ‘kept on trucking’ at the same workplace

Allen Smith, J.D. By Allen Smith, J.D. November 13, 2017
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​By now the image of the cyclist flipping off the president has long since gone viral. But the question remains: Was firing her too harsh when a colleague of hers who criticized a Black Lives Matter supporter in a lewd posting wasn't terminated? At least one employment lawyer thinks she might make a strong case that it was. But two others side with the federal contractor that employed her.

Juli Briskman made news last month after a post on social media showed her flipping off President Donald Trump while she was riding a bike in northern Virginia and he passed in a motorcade. On Halloween, she told her employer, Akima in Herndon, Va., that she was the one giving the president the middle finger. Akima fired her, The Washington Post reported Nov. 6.

But this past summer, as part of her duties of monitoring Akima's social media presence, she reportedly found a public comment on Facebook by a senior director at the company in a discussion with one of his employees about Black Lives Matter. "You're a f------ Libtard a------," the director said, using a profile that identified him as an employee of the firm. Briskman alerted senior management to the exchange.

Did her colleague get discharged? As the Post put it, "Nope. He cleaned up the comment, spit-shined his public profile and kept on trucking at work."

So why was she fired when he wasn't? Her back was to the camera that caught her flipping the bird, and her face wasn't pictured. Nothing about her on her personal social media sites, where she posted the photo without identifying herself, mentioned her association with Akima. While Briskman did note on LinkedIn that she was an Akima employee, she didn't share the photo there, the Post reported.

"This is the $64,000 question," said Aaron Goldstein, an attorney with Dorsey & Whitney. "It depends heavily upon the surrounding facts. Has anyone in management made any sexist remarks, especially in writing or e-mail? Is there any other evidence that women in this workplace are treated less favorably? If so, the discharged employee could have a very strong case. Even without such additional facts, cases like this often make it to a jury, at which point the employer is rolling the dice at best."

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

He added, "Controversial statements in the workplace about social and political issues may not be protected by the First Amendment, but there are many other legal traps for unwary employers."

If statements are shared among co-workers and relate to the terms and conditions of employment, they could be protected by the National Labor Relations Act, he noted. "And if employers selectively enforce rules regarding inappropriate speech, they could find themselves liable for discrimination claims."

Top Client Insulted

However, Meghaan Madriz, an attorney with Haynes and Boone in Houston, thought Akima had legitimate grounds for terminating Briskman. The employee's actions were more egregious than her colleague's because they potentially hurt the company's bottom line, Madriz emphasized. "As a government contractor, it is at the mercy of the government for funding and business," she said, noting it would "want to distance itself from those who show distaste for the current president."

Madriz cautioned that in some states there may be local protections against discharging someone for political affiliation or activity. "For example, in California, Colorado, New York and Louisiana, it's illegal to retaliate [against employees] for off-duty participation in politics or political campaigns. It could be that her activity could fit within one of those states' laws" were she in those jurisdictions.

"This company could have acted for any number of reasons," said Jim Murphy, an attorney with Ogletree Deakins in Washington, D.C. He agreed with Madriz that "while the difference in outcomes may seem unfair, there may be perfectly valid business reasons for it. The simplest explanation is that, as a government contractor, the employer's survival is tied to maintaining good business relationships with the U.S. government and, in particular, with the executive branch, which is headed by you-know-who in the black limo driving past her. In short, the employee gave the company's biggest customer the bird."

As for the First Amendment, employees in the private sector frequently do not understand that unless you work for the government, the amendment does not provide any right to free speech in the workplace, he noted.

Briskman and Akima declined to comment for the article.

 

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