Most employers don’t enjoy firing employees. But getting rid of that toxic employee who causes drama throughout the workplace can feel good. And you wouldn’t be human if you didn’t have at least some desire to tell the world why you are so happy to get rid of that employee. We all need to vent.
But it is an urge you should resist, especially if you are a public employer. Bad mouthing a former employee could lead to legal trouble. If a public employer fires an employee and then inflicts reputational harm on that employee so that it makes it difficult for that employee to find another job, the employee could argue that his or her procedural due process rights were violated and sue the employer.
The Due Process Clause protects one’s liberty interest to pursue an occupation of his or her choice. Courts have found that when an employer fires an employee and then bad mouths him or her, it can interfere with the employee’s right to pursue his or her occupation of choice. The bad-mouthing must be so severe that it makes it difficult for the employee to find another job. With social media, this is easier to do than it was in the past. Posting something online about how terrible an employee you have just fired was could make it difficult for that employee to get a job in the future.
I recently came across a case where this legal principle was applied. It did not involve an employer/employee relationship, but it is an interesting case that highlights what has gone so very wrong in college, so I figured it would be something interested readers may want to check out.
The case, titled Doe v. Purdue University, involved a male college student who sued Purdue because he claimed the University violated his due process right to pursue his occupation of choice. The male student began dating a female student in his ROTC program. They engaged in consensual sexual relations. Soon after they began dating the female student began acting erratic and attempted suicide in front of the male student. The male student reported this suicide attempt to his RA and then broke up with the girl. The two seemed to move on with their lives with each entering into new relationships.
A few months after the breakup, the female student attended a workshop provided by the University on sexual assault. The organization hosting the event posted things on its Facebook page like “Alcohol isn't the cause of campus sexual assault. Men are.” Soon after attending this workshop, the female student reported that the male student had sexually assaulted her. She said that when the two were sleeping together in the same bed the male student groped her when she was asleep. She also claimed that while they were dating he went through her underwear drawer without her permission.
The male student was brought before the school’s Title IX commission to investigate the allegations, where he denied groping her or doing anything that constituted sexual assault. Somehow, the Title IX commission found that the male student had confessed to the female student’s allegations. The commission never interviewed the female student, but apparently took her word about what happened at face value. In fact, two of the three members of the commission claimed that they had not even read the investigative report. They, apparently, just assumed the male student’s guilt. They suspended him for a year, and due to this suspension and the commission’s finding that the student engaged in sexual assault, he was kicked out of his ROTC program.
The male student sued Purdue, claiming that they deprived him of his right to pursue his occupation and inflicted such severe reputational harm on him that he would have difficulty pursuing any career in the future. The court agreed and found that he stated a claim that the University violated his rights under the Due Process Clause. If the student is able to prove his claims Purdue could be on the hook for a lot of money.
The lesson from this case is that when public employers engage in actions that harm the ability of employees they have fired to obtain future employment, they could be setting themselves up for a lawsuit. So as much as you may want to bad mouth that employee you just fired, don’t do it, especially on social media.