Volokh conspiracy lawyer scrgruppen

In recent days, we’ve seen some employers say they will refuse to hire people based on those people’s praise of the Hamas attack on Israel (or at least certain types of praise), see, for example, This story is about one business owner This is what someone else said:

(For more on the specific statement that led to the offer being cancelled, see here.) Likewise, one can imagine other employers refusing to hire people based on these people’s hypothetical praise of various types of Israeli retaliation against the attack. Is this legal, at least for private sector employers?

The answer is that it generally depends on state law, and sometimes even county or city laws.

There is no general constitutional right for employers to refuse to hire people whose statements or actions substantially conflict with [the employer’s] Values ​​as a Company.” For example, federal and state laws generally prohibit employment discrimination based on an employee’s religion, no matter how strongly the religion may conflict with the employer’s values.

Such laws also prohibit discrimination based on sexual orientation and gender identity, generally regardless of a company’s values. (There is debate about the extent to which state or federal religious exemption rules provide an exemption from the prohibition of employment discrimination for employers who have religious objections to hiring certain people. However, even if such exemptions are sometimes granted—and they are often not If not – this would be a special feature of religious exemption regimes, and likely not available to employers who simply object on moral or practical grounds.)

Federal law prohibits discrimination on the basis of union membership, even if the employer is strongly anti-union and believes that union membership conflicts with its values. To my knowledge, almost all or most states prohibit firing an employee based on how a person votes in a different election, no matter how strongly that vote conflicts with the employer’s values. In fact, some states make such discrimination based on how a person votes felony.

Likewise, a large number of states and some counties, cities, and territories prohibit discrimination on the basis of various types of political activity, or expression more broadly (although many do not). the California laws Protecting private sector employees from retaliation for their “political activity,” for example, has been read as prohibiting discrimination in employment dismissals. Or employment “on an employee basis”Endorsing a candidate or cause“, including broad ideological reasons and not just ballot measures.

There are other laws that are narrower, or sometimes more ambiguous. New York lawFor example, it prohibits employment discrimination based on off-duty “political activities,” which is defined to mean “(1) running for public office, (2) campaigning for a candidate for public office, or (3) engaging in fundraising activities.” Funds for a candidate, political party, or political advocacy group.” This appears to be largely limited to election-related rhetoric, which will not include advocacy for Hamas’ actions or the Israeli response to those actions.

But New York law also prohibits employment discrimination on the basis of off-duty, unpaid “leisure activities,” which is defined to mean “any lawful leisure activity … which is generally undertaken for recreational purposes, including e.g. Examples include, but are not limited to, sports, games, hobbies, exercise, reading, watching television, movies, and similar materials.” Will this extend to posting about current events on Facebook or Twitter? This is not clear. Comparing Kavanaugh v. Doherty (NY App. Div. 1998) (treating the statute as covering “discussion during recreational activities outside the workplace where political affiliations become an issue”) and Al-Amin v. Avon Prods. (N.Y. App. Div. 2002) (seeming to treat the statute as covering “Plaintiff’s participation in a vigil for Matthew Shepard, the gay college student brutally murdered in Laramie, Wyoming,” Jennifer Gonnerman, Avon Shooting, Village Voice, March 2, 1999) with Kolb v. Camilleri (WDNY 2008) (“Plaintiff did not engage in the sit-in for his leisure, but as a form of protest. While the Court found that such protest deserved constitutional protection, it should not generate concurrent protection as a recreational activity akin to ‘sports,’” Games, Hobbies, and Exercise sports, reading, watching television, movies and similar materials.’”).

Now what if the employer argues that an employee or potential employee’s speech is so offensive to customers or co-workers that it undermines the employer’s business? Laws also seem to differ in this regard. Remember, for example, that an employer may not raise such objections as a defense to firing employees based on their religious values; No matter how much your clients disapprove of Satanists, Evangelical Christians, Orthodox Jews, or Sunni Muslims, you do too Can’t use that As a basis for rejecting an employee.

Some state laws appear to be relatively categorical Others It has some exceptions of varying breadth. New York law, for example, excludes cases where an employee’s political or entertainment activity “creates a material conflict of interest related to the employer’s trade secrets, proprietary information, or other business or proprietary interests.” I suspect this extends only to general hostility (however morally justified) to the speech (although seeing as this Federal District Court decision); I believe that the phrase “business or other proprietary interests” refers to interests such as those related to trade secrets or proprietary information, and perhaps in addition to other things that fit with the general understanding of “material conflicts of interest.” But the exact scope of this exception is, to my knowledge, not well defined.

To be sure, in some situations an employer may have a First Amendment right to discriminate among employees, especially those who speak on behalf of the employer. Churches have The first amendment is correct To choose clergy, despite the prohibition on discrimination based on race, religion, gender, sexual orientation, disability, etc. (They also have fun in general.) Legal exemptions From the ban on religious discrimination against all of its employees, even low-level employees.) A newspaper may have a First Amendment bar to political activity by its reporters (see pp. 280-83 of this article). But these are narrow exceptions to the general rules set forth in the state laws I described above, which apply to relatively narrow categories of employees.

Below is a rough map of how laws differ across the country, although you can see more detail here.

Again, not all jurisdictions have such laws. But some do, and that may provide legal protection for political speech by employees, including speech that many consider highly offensive. (I should note that I am not expressing my opinion here on the specific Winston & Strawn incident mentioned at the beginning of this article; again, it depends on where the student would have worked, and if that jurisdiction had such a law, what should be done? Its scope expires.)

Finally, for an expanded discussion of the political arguments for and against these laws here.