Falling Off the Fence: Can You Fire Those with Different Viewpoints?

Gray Reed
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Gray Reed

Ernest “Big Daddy” Bux’s daughter Kathy “Kitten” was working for Approval Literary Agency in Blessing, Texas – that is until last month. Kitten, an associate literary agent with Approval Literary was sacked after her boss learned that she owned accounts on the politically charged social media sites Lobby and Blabber. The agency’s owner I.B. Cheef publicly announced on Twitter that the firm had dropped Kitten after making the distressing” discovery. Kitten tweeted that she was fired because of her religious and political views. Does Kitten have a case for wrongful termination?

Legally

In, Texas? Probably Not. The basic rule in Texas is the employment at will doctrine. Absent an express agreement to the contrary, either party in an employment relationship may terminate or change the employment terms and conditions any time for any reason, or even for no particular reason at all, with or without notice. A private employer must also be mindful that the U.S. Equal Employment Opportunity Commission enforces laws that make it illegal to discriminate against someone because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. State employees in Texas have broader protections.

The First Amendment?

No. By its terms, it doesn’t apply to private employers, “Congress shall …,” which has been read as applying to the federal government generally, and the Fourteenth Amendment, which starts with “no state,” has applied this only to state and local governments. But, what about firing someone for what they say or what they do after hours, such as a state statute that bans firings based on certain kinds of speech or political activity? There are some.

New York

New York bars employer retaliation for off-duty “recreational activities,” including, among other things, “reading and the viewing of television, movies, and similar material.” It also expressly protects a limited range of partisan political activities, such as running for public office, campaigning for a candidate

for public office, or participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group. Yet, does the “recreational activities” provision protect political commentary on social media? That’s unsettled – especially in light of several New York State cases which appear to narrowly apply the statute.

Practically

Practice polite public discourse. And, it’s wise to know both the ins-and-outs of your job and its responsibilities, and your boss and his or her proclivities. Yes, generally speaking, in Texas you can be fired “for no particular reason at all.” For example, that includes being too short. A similar article Coming Up Short: Is it the Height of Prejudice Not to Hire Short People? appeared in this blog on September 26, 2012.

Tilting the Scales in Your Favor

As the saying goes, “you can sue someone for just about anything.” So, be judicious in your selection of employment and employers, and be thoughtful about your selection of social websites.

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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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