‘The political is personal’: Can you be fired -2- – Morningstar

In a statement issued on Oct. 10, the firm said: “Today, Winston & Strawn learned that a former summer associate published certain inflammatory comments regarding Hamas’ recent terrorist attack on Israel and distributed it to the NYU Student Bar Association. These comments profoundly conflict with Winston & Strawn’s values as a firm. Accordingly, the firm has rescinded the law student’s offer of employment.”

The statement continued: “Winston stands in solidarity with Israel’s right to exist in peace and condemns Hamas and the violence and destruction it has ignited in the strongest terms possible. We look forward to continuing to work together to eradicate anti-Semitism in all forms and to the day when hatred, bigotry, and violence against all people have been eliminated.”

State laws vary on employee rights and political expression

Employees can be fired in the U.S. for their political opinions, and for expressing them. But the federal and state-level legal framework is a complex one, and an employer’s ability to fire a staffer without facing a wrongful-dismissal suit will also depend on the nature of the political speech and where it occurs.

“There are only a couple of states with state laws that prohibit discrimination based on political beliefs: New York, California and the District of Columbia,” said Davida S. Perry, a managing partner with Schwartz Perry & Heller LLP in New York City. Political beliefs are not protected under federal law.

If you are having political conversations, your rights will also be complicated by where you are employed and the nature of those political opinions. For instance, Florida is an at-will employment state, meaning you can be fired for any reason, or no reason at all.

While California is also an employment-at-will state, California Labor Code Section 1101 states that no employer can prevent or forbid an employee from participating in politics, or from becoming a candidate for public office. “You cannot be fired for political activity or affiliations or for distributing political communications in California,” Greene said.

Gerald Hathaway, a labor and employment lawyer and partner with Faegre Drinker, said New York state is an “emphatically” employment at-will state. “It’s one of the strongest in the country, which means you can fire whoever you want as long as you’re not in violation of a protected statute,” he said.

However, Section 201-D of the New York State Labor Law prohibits discrimination based on “political activities outside of working hours, off of the employer’s premises and without the use of the employer’s equipment or other property.” Again, this state law applies to private-sector workers rather than federal employees.

Political statements and ‘associational discrimination’

But what if an employee in Florida engages in a political activity about someone subjected to unlawful discrimination? “That speech could be protected by the Civil Rights Act and the Florida Civil Rights Act,” Greene said.

Even if a state has no protections for employees who are fired for political expression, it gets complicated if their political opinions overlap with protected classes under Title VII of the Civil Rights Act.

Gabe Roberts, Jacksonville partner for the Scott Law Team, is taking a legal case against Palm Beach Atlantic University for the wrongful termination of Joeckel, the English professor, under Title VII of the Civil Rights Act. “There is an underlying political element to all of this, especially if you look at what DeSantis is doing in Florida in terms of education,” he said.

‘It’s hard to talk about racial justice without talking about politics. I think the two are intertwined. It’s the same with gender equality.’Sam Joeckel, who says he was fired for his views on racial justice and LGBTQ rights

“It’s not that he was terminated because of his race. It’s because of his advocacy and association for race in general that motivated his decision,’ Roberts said.

Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992 do not include political expression as a protected class. However, Joeckel’s racial-justice unit may contain “associational discrimination,” given that the English professor was discussing issues of race, which is a protected class under both pieces of legislation, Roberts said.

“There is nothing inherently protected about political views, whether you’re a Trump supporter or Biden supporter,” Roberts told MarketWatch. “Could you be fired for supporting Israel, and could you be fired for supporting Palstine? That question is tricky.”

Roberts gives some hypothetical examples: During the Trump administration, an employee is fired after complaining about building a border wall. “That alone would not necessarily be a cause of action, but if that employee is from Mexico or of Mexican descent, or the employee said these issues are important to them, that could trigger other protections,” he said.

In other words, Joeckel is a college professor and a white man who was teaching about racial justice. But his association with racial justice could, as Roberts sees it, mean his firing relates to a protected category.

Roberts said he filed a charge of employment discrimination on behalf of Joeckel with the Equal Employment Opportunity Commission.

Joeckel is now teaching English as a second language at the Institute for Academic and Career English in North Palm Beach. “Immediately after it happened, my colleagues were saying, ‘I can’t believe that they did this,’” he said. “The next day, everyone was avoiding me. It was obvious they were looking the other way and going in the other direction.”

But his students, he said, were a revelation. “I had students reaching out to me from 18 years ago,” he added. “Last semester, I threw a party for my students because I never got a chance to say goodbye. They came to my house, and I received a lot of love from them. The stakes aren’t as high for the students. They can talk to me, and talk to me, they did.”

“University education is about wrestling with ideas,” he said, “but for the university, even presenting the ideas in the manner I presented them is unacceptable, and to me that is completely contrary to the idea of higher education. The only party guilty of indoctrination is Palm Beach Atlantic University.”

-Quentin Fottrell

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10-28-23 1508ET

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