Second, the employer’s speech restrictions are discriminatory against a protected class. Imagine that an employer had a policy against wearing political or offensive clothing to work. But then a Black employee is told to change when he comes in wearing a George Floyd t-shirt, even though a white employee is allowed to continue wearing a t-shirt with a Blood Drop Cross on it .
Depending on how an employer restricts its employee’s political behavior, the employer may run afoul of these laws. For instance, some protections only protect political speech outside of work. Generally speaking, when deciding if an employee will have the right to speak freely pursuant to the First Amendment, courts will consider the following two factors:
2. If the employee’s interest in speaking outweighs the government employer’s ability to carry out its function. So even if an employee’s speech is about a matter of public concern, if it were to disrupt the workplace so much such that the government employer could not carry out its duties, then the employee’s speech could potentially be restrained.
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