Can An Employer Force Out An Employee For Unpopular Political Views: The Brendan Eich Story

by Hirschfeld Kraemer LLP
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Brendan Eich resigned his post as CEO of Mozilla, a California-based company, in early April after just 14 days on the job.  The reason for his sudden departure and short tenure?  It became public that in 2008, Eich contributed $1,000 in support of the Proposition 8 campaign, the California voter referendum that sought to ban same-sex marriages (Proposition 8 was later overturned by the U.S. Supreme Court).  There were no allegations that Eich had discriminated against anyone on the basis of sexual orientation.  There were no claims that his personal beliefs about gay marriage had spilled into the workplace impacting Mozilla employees, vendors or workplace policies.  There was, however, a firestorm of tweets from Mozilla employees demanding Eich step down.  One employee placed herself on unpaid leave in protest.  OkCupid posted a statement that Mozilla Firefox browser users should protest Eich’s elevation by switching to a different Internet browser.  The reaction on social media opposing Eich as the next CEO was swift and vocal. Mozilla has since stated that less than 10 of its 1,000 employees insisted upon Eich’s resignation, while many others supported his leadership and only expressed disappointment of Eich’s support of Proposition 8.  At first when his donation came to light, Eich stridently refused to step down.  But only days later, Eich reversed course and resigned, stating that under the present circumstances, he could not be an effective leader.  Mozilla, in a FAQ posted on its website, wrote that Eich was not asked to resign, and that he had been urged to stay with the company in a different role. Eich declined.

One legal question arising from this very public resignation is, how can political speech, including donations to political campaigns, affect one’s employment?  The answer is that it should have no bearing.  Under California Labor Code sections 1101 and 1102, an employer cannot make, adopt, or enforce any rule or policy that forbids or prevents employees from engaging or participating in politics.  Nor can an employer coerce or influence employees through a threat of termination to adopt, follow or refrain from adopting or following any particular course or line of political action or political activity.  Courts have interpreted a “political activity” to include promoting the acceptance of a cause and an association with others for the advancement of beliefs and ideas.  In 1979, 20 years before sexual orientation was added as a protected class under California’s fair employment statute, the state Supreme Court held that an employer violated sections 1101 and 1102 by refusing to hire applicants who were referred for hire by an organization active in promoting the rights of homosexuals to equal employment opportunities.  Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458 (1979).  The court held that association with a political cause is protected under section 1101 as a fundamental right of employees to engage in political activity without interference by employers.

Eich’s donation was unquestionably a “political activity” that is protected under California law.  If an employee donated to an organization that supported gay rights, such as the “No on Prop 8” campaign, the employee’s termination for this support would violate state law.  An even more outspoken opponent of gay rights is Dan Cathy, the president of Chick-fil-A.  After the U.S. Supreme Court issued two favorable rulings for gay rights last summer, Cathy tweeted his disapproval, writing that it was a “sad day for our nation.” Chick-fil-A issued a statement saying Cathy was offering a personal comment and not speaking on behalf of the entire organization.  Although boycotts of Chick-fil-A have been organized in response to Cathy’s beliefs, he still holds the president position.  If Chick-fil-A terminated Cathy for making what is arguably political speech, this would violate California law.

Mozilla has stated publicly that Eich was not forced out and the resignation was his own decision.  Mozilla’s Executive Chairwoman, Mitchell Baker, recently wrote in a blog post about the resignation that “Mozilla believes both in equality and freedom of speech.  Equality is necessary for meaningful speech.  And you need free speech to fight for equality.  Figuring out how to stand for both at the same time can be hard.”  There is often an indecipherable line between a voluntary resignation and being pressured to leave in senior executive-level departures.  If Eich was coerced by the Board of Directors to resign because of his campaign donation, then he would likely have a viable claim under the Labor Code.  Otherwise, one wonders if the practical impact of California law is to protect only what the majority considers as desirable or popular speech.

In any event, Eich’s hasty exit is an excellent illustration of the power of social media and the voice it offers even a small amount of employees to exert pressure on company’s personnel decisions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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