While many Toronto residents spend their time wincing at the infamous antics of their elected (and possibly soon-to-be reelected) mayor, Rob Ford, I’ve been imagining what a Minnesota employer would do if he was its employee – or, worse yet, a supervisory employee - not elected by the people. Are you cringing yet?
“Fire Him!” would likely be a common refrain. But for what exactly? His admitted use of crack cocaine? The death threats? The sexual comments? Knocking down a councilwoman and the viral video aftermath? There seems to be so much to choose from. Even when a termination decision is seemingly obvious, however, employers should still consider whether an employee’s actions are legally protected and navigate those protections carefully.
Let’s start with Mayor Ford’s illegal drug use. Doesn’t admitting illegal cocaine use alone support a termination? Actually – it depends. Under federal and Minnesota employment discrimination laws, current illegal drug use is unprotected but past drug use can be a protected disability. Mayor Ford has admitted past drug use and claims to be under the care of doctors, making it possible he could claim to be disabled if employed in Minnesota.
In addition, if a Minnesota employer learned of Mayor Ford’s illegal drug use through a drug test, Minnesota’s drug and alcohol testing statute might prohibit his termination. Under Minnesota’s drug testing law, Mayor Ford could not be terminated for a first-time positive test result. Instead, he could only be terminated if he was given and refused the opportunity to participate in an appropriate treatment program or if he later tested positive for drugs following treatment. If Mayor Ford successfully completed treatment, however, his employer could not fire him for his first positive drug test result.
In light of these potential legal protections, I’ll turn to Mayor Ford’s other conduct. For example, what about his sexually offensive comments to reporters about his personal sex life? Some might say those comments were sexually harassing to the reporters. Sexual harassment law, however, may not encompass Mayor Ford’s comments to third party reporters and a small number of comments may not be sufficient to be legally actionable as harassment.
Nevertheless, there is a good chance a Minnesota employer could still fire Mayor Ford for his sexual comments to reporters, his death threats, his openly mocking Toronto councilmembers, and his conduct in knocking down a councilmember. A public, governmental employer must respect an employee’s First Amendment rights, but private employers don’t have that obligation. Moreover, many of Mayor Ford’s comments – including sexual comments and death threats – are likely not protected First Amendment speech. Certainly, physically plowing down a political representative is not protected speech and is clearly unacceptable, unprotected behavior. In conclusion, then, what would I tell a Minnesota employer that wanted to fire Mayor Ford? The answer is yes - fire away.