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



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.

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