More than a year after Colin Kaepernick first took a knee during the national anthem following several high-profile shootings of black men, the former quarterback for the San Francisco 49ers has not been rehired by the National Football League. While many athletes have subsequently taken a knee or publicly supported him, President Donald Trump has suggested that NFL owners should fire anyone who “disrespects” the flag. And many people have speculated that Kaepernick’s protest is the main reason why he wasn’t signed to a new team this fall.
Kaepernick’s high-profile protest may seem exceptional, but it raises an important question that applies to any worker in the US: Is it legal for employers to refuse to hire someone because of their public protests and political beliefs? In a word, yes. Your First Amendment right to free speech doesn’t prohibit employers from hiring or firing you based on your views.
Questions about where the free speech rights of workers begin and end is by no means limited to the football field. Workers and employers in every profession grapple with complicated issues about when an employee’s behavior is protected as well as the more subtle ways employers can hurt your career or fail to support you even when you think they should.
For example, when former Uber employee Susan Fowler reported sexual harassment by a coworker, “I was told by both HR and upper management that even though this was clearly sexual harassment and he was propositioning me, it was this man’s first offense, and that they wouldn’t feel comfortable giving him anything other than a warning and a stern talking-to,” Fowler wrote in a 2017 blog post. She quit the team she was working on with that coworker after being told that she would receive a negative performance review otherwise.
To better understand how you’re protected at work — and how you’re not — here’s a guide to three common employment myths and the truth about each.
Myth: The first amendment protects your right to protest or make political statements at work
The NFL example is more complicated than most, in part because players could argue that termination would violate their employment contract terms or violate laws against racial discrimination. Still others have speculated that President Trump’s pressure on owners to fire players could be seen as government suppression of speech.
But contrary to popular belief, the First Amendment likely does not protect the football players, or most other workers. Instead, it prevents the government from suppressing free speech. There are also no federal laws protecting you from being fired on the basis of your political views or your expression of those views, although some states have laws in place prohibiting employers from firing you for certain political acts, like voting.
When the government is your employer, you may still not have 100% protection for your speech, either at work or off the clock. For example, a fire department battalion chief was fired for violating the department’s code of conduct — which explicitly banned “conduct unbecoming” — when he posted statements that supported violence on his Facebook page. He sued, claiming the First Amendment protected his free expression, but his case was unsuccessful.
Myth: Workplace discrimination is always illegal
Because there are laws that protect against certain types of discrimination, it’s a common misconception that most, or all kinds of, discriminatory behaviors are unlawful. This isn’t true. Only specific kinds of prejudicial treatment are prohibited by federal or state law. Unless you have an employment contract, your employer can fire you for any reason or no reason — as long as these laws aren’t violated.
You are protected against discrimination on the basis of race, color, religion, sex, national origin, being 40 or older, workplace disabilities and genetic information under various laws like Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. State laws in many jurisdictions also go further than federal laws.
Unfortunately, workers can still be fired for many discriminatory reasons not prohibited by law, including your appearance, a long history of unemployment or your weight, unless you are classified as severely obese. In some states, you can be also denied employment due to a bankruptcy filing.
It may also be difficult to sue on the basis of a single incident of harassment, rather than a pattern of behavior. Although successful single-incident cases have become more common, the single incident usually must be fairly egregious for a claim to be successful. For example, while a single incident of unwanted touching could be enough to prevail in a discrimination case, one vulgar comment or joke likely won’t be sufficient for a legal remedy.
Myth: You can sue an employer without consequence
When an employer does violate anti-discrimination laws, you can sue for damages. Unfortunately, there are often serious consequences to suing. “While it is illegal for an employer to terminate or otherwise retaliate against an employee for complaining about discrimination, some employers will do it anyway. This is particularly true where the harasser is a manager, supervisor or owner of the company,” George Frederick, an employment and family law attorney in Illinois, said in an email interview.
What’s more, going through the process of suing can come at significant personal and professional cost. Your company could find pretexts to fire you, and your chances to get hired for a new job could be affected if news of your lawsuit becomes public.
When Ellen Pao sued the Silicon Valley venture firm she worked at, she’d been warned by others that suing would ruin her reputation. She went ahead with what she described in the Cut as a “widely publicized case in which I was often cast as the villain — incompetent, greedy, aggressive and cold.” Not only did she lose her case, but in the process her personal life and marriage were put on display, she was defamed online and she was eventually forced out of her job. “I was toxic to people for a long time,” Pao told the New York Times.
In a less well known case, Stephanie Hicks lost her career as a police officer with the Tuscaloosa Police Department after suing for discrimination in 2013. After having a child, she was made to pump breastmilk in a public locker room, was demoted and her requests for a temporary desk job that would allow her to pump were rebuffed. She quit her job and was ultimately awarded $374,000 in damages for hostile work environment discrimination. Her husband, also an officer, quit because he felt the workplace became too hostile after his wife sued. Neither believes they’ll be hired on another police force, they told AL.com in 2016.
If you plan to sue, your best bet is usually to hire an attorney as soon as possible. “Most employees who hire an attorney to represent them relative to discrimination in the workplace have their cases resolved privately by way of a private settlement agreement. Generally, one of the terms of the settlement agreement will be that it will remain confidential,” Frederick said.
This should mean future employers won’t find out about the case and your career prospects won’t be harmed — but not all employers are willing to settle, and employers could leak your information or share gossip that hurts your career. Unfortunately, if you want to stand up for your rights, this may be a chance you just have to take.
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