AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS

99 Chauncy St. Boston, MA 02111 617-482-3170

PRESS RELEASE

For immediate release:

Contact: Eric Maxwell, Esq.  at 617-357-5800

October 15, 1998

COURT RULES IN FAVOR OF DSS SOCIAL WORKER

FIRED FOR TELLING RACIST JOKE

In a decision dated October 8 and made public yesterday, Judge Herman Smith of the Suffolk Superior Court has ruled that the Department of Social Services violated the first amendment free speech rights of social worker, Linda Pereira, a former Fall River City Counselor. Pereira was fired after telling a racist joke at her table at a private dinner for outgoing Fall River City Counselors. The judge ordered Pereira reinstated to her position with back pay and found DSS Commissioner Linda Carlisle individually liable to Pereira for monetary damages for making the decision to fire Pereira. The amount of damages will have to be established at a later trial, according to Eric Maxwell, who represented Pereira as cooperating attorney for the ACLU of Massachusetts.

Pereira had been employed by DSS for over 12 years, during which time she had an unblemished work record. She had never displayed racist sentiments or acted in a racist manner. On February 5, 1996, Pereira attended the private party, during which a city official told her a grossly sexist joke. In response, she told him the racist joke. Apparently, the joke was overheard, as it was reported in the press, inaccurately, as being included in her speech condemning voting irregularities. Carlisle immediately placed Pereira on administrative leave and fired her on April 10, 1996.

Although Judge Smith described Pereira's joke as "racist and utterly detestable," the judge's decision was based on the basic first amendment principle that public employees' free speech rights are determined by balancing the interests of the employee as a citizen against the interests of the employer. In this case, he ruled that DSS had made no showing that Pereira's comment impaired the effective functioning of DSS. Although 25 people called DSS to complain about Pereira's statements, this did not show any interference with the regular operation of the agency. Quoting Supreme Court Justice Lewis Powell, Judge Smith noted "that a purely private statement on a matter of public concern will rarely, if ever, justify discharge of a public employee."

Judge Smith also ruled that Commissioner Carlisle was personally liable to Pereira because "a reasonable official would have understood that firing plaintiff for making a racist comment at an event not open to the public violated her right to free speech."

Maxwell said that Pereira was a good social worker who made a stupid statement. "The judge's decision properly protects public employees from being fired for their private comments."

-end-