When can an employer cite free speech rights in response to an employee's suit?

Worker makes claims against employer for harassment and discrimination due to race and religion

BY Bernise Carolino 14 Aug 2023

The Texas Citizens Participation Act (TCPA) will not protect an employer from lawsuits relating to allegedly racist comments expressed in a private setting about a single employee, the 14th Court of Appeals of Texas said in a recent case.

The TCPA gives citizens an expedited dismissal procedure for strategic lawsuits against public participation or for retaliatory lawsuits aiming to intimidate or to silence them from exercising their First Amendment freedoms in connection with matters of public concern, the appellate court explained.

The case arose when an employer sued its former employee for breaching and defaulting on a promissory note by failing to timely pay all sums due.

The employee responded by filing 18 counterclaims. The employer allegedly retaliated against him for complaining about the harassment and discrimination that he experienced on a daily basis during his employment due to his Indian descent and Muslim beliefs.

According to the employee, those who harassed and discriminated against him:

constantly made fun of his race and religious beliefs
said that Indians did not understand things and should be gotten rid of
called him “stupid” and a “vampire machine”
pointed a gun at him
sent disparaging emails about him
produced a video mocking him, criticizing his performance, and accusing him of wrongdoing
criticized him for talking too much during presentations, laughed at him, and said that he was “going to go through every fucking button,” that the client was “probably pulling his hair out,” and that his kids probably went “to sleep so easily”

The employer, citing the TCPA, filed a motion seeking to dismiss all the employee’s counterclaims except fraud. The employer argued that the allegedly discriminatory and racist statements and communications were exercises of the right to freedom of speech.

The trial court denied the employer’s TCPA motion. The employer appealed.

Employer can’t dismiss counterclaims

In the case of Robert Hayman v. Ekram Khan a/k/a Ekramul Khan, the 14th Court of Appeals of Texas affirmed the order of the trial court denying the motion to dismiss under the TCPA.

According to the appellate court, the TCPA was inapplicable to give the employer freedom-of-speech protections against the employee’s counterclaims because the allegedly discriminatory and racist statements and communications by the employer’s other employees:

did not qualify as an exercise of free speech rights under the TCPA
were not made in connection with a matter of public concern as defined by the TCPA
were not made to a public audience
were not likely to have broader relevance to a public audience outside the company
were not likely to impact a larger part of the community
arose out of the employment relationship
were made in the workplace
were made in a private setting where the parties discussed internal business affairs
were made about one person
were made to a limited group of people

The employer argued that the allegedly discriminatory and racist communications and statements amounted to a valid exercise of free speech because they involved race, national origin, and religious discrimination.

The appellate court accepted that race, national origin, and religion were subjects of general interest and of value and concern to the public. However, the appellate court found that the employer was not discussing race or religion in the U.S. and was not generally addressing these subjects.