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Confusion over Employment and Campus Gaza Protests

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While the death of George Floyd ignited one round of protest, the Gaza situation has created another such round of protest.  As a general rule, it is often said that "political" protests by employees do not implicate the discrimination laws, but the situation is far from clear.  For example, a current case is pending appeal before the Fifth Circuit Court of Appeals as to whether an employee could be fired for opposing a union's attendance at the 2017 Women's March on Washington, an event sponsored by Planned Parenthood dealing with abortion-related issues.  The issue is whether this employee's protest is protected under Title VII as related to religious freedom or crossed the line into abusive harassment.  Carter v. Southwest Airlines, No. 23-10536, Oral Argument 6/3/24.  This newsletter has addressed numerous cases raising the issue of whether wearing Black Lives Matter (BLM) masks or insignia are protected conduct under the discrimination rules of Title VII, or the protected conduct rules of the Labor Act.  More recently, applicants or employees have been denied employment over such activities regarding Hamas issues in Gaza.  Unfortunately for employers, the answer to these issues is not clear.

Nationally known employers have defended their recisions of job offers to protesters on the basis of defending core values, stating that some of the rhetoric veers into being anti-Semitic and anti-American.  Some civil rights lawyers are arguing that the heightened scrutiny amounts to discrimination.  It should be noted that some states and localities have laws protecting employees from discrimination based on political activity, and/or lawful activities outside the workplace.  A few judges have gotten into the act in an unusual way, sending a letter to the President of Columbia University stating that they had "lost confidence in Columbia as an institution of higher education," and would not hire law clerks from the University until it expels students and fire faculty who "participated in campus disruptions," and hire faculty with a more diverse array of views.  

While it is difficult if not impossible to come up with a simple formula to explain what employers can and cannot do regarding these issues, a few general principles will be mentioned.  First, competent experienced employment law counsel is needed to assess the fine lines involving these difficult issues.  Second, the specific reason for the adverse employment action is critical, as often parts of a "protest" are quite legitimate while other parts cross the line, and specificity is needed to base the action only upon the "unprotected" portion of the protest.  The most recent EEOC Harassment Guideline suggests looking at the potential harassment from the perspective of the person experiencing it, such as a Jewish person, if there is a genocidal quality to a protest, but it is very difficult to determine where an employer can draw the line. 

This article is part of our July 2024 Newsletter. 

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