A number of states prohibit employers from taking adverse actions against employees for engaging in lawful off-duty conduct. The National Conference of State Legislatures published a report in 2010 listing the states that offer such protections. For example, California, Colorado, New York, and North Dakota provide protections for employees who engage in “lawful activities.” Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin protect employees who use “lawful products.” Eighteen other states protect employees who use tobacco.
As a libertarian, who generally favors liberty of contract and at-will employment, I do not have any strident objections to employers firing employees for off-duty conduct they disfavor. The rationales behind these laws, however, is that employers should only make adverse decisions based on conduct in the work place. These laws make sense to progressives who want to regulate all manner of employment–such as “banning the box” about past criminal activity. At various times in American history, “black lists” were used to prevent suspected Communists from working in certain industries. Attending a meeting of the Communist Party is not onyl lawful, but constitutoinally protected. In California, firing a private-sector employee for being a suspected Communist would be illegal.
Pennsylvania has no such law, which is relevant in light of the story of “Pistachio Girl.” Emiy Youcis sells pistachios at Philadelphia Phillies games. She made a number of comments on social media and elsewhere about “white nationalism,” and endorsed the “alt right” movement. Her employer, Aramark, fired her for these statements.
“A core Aramark value is treating everyone with integrity and respect always. That includes respecting our associates’ right to privacy and dealing with personnel matters confidentially. We can only confirm that the individual asked about is no longer employed after publicly connecting our company to views that contradict our values.”
Youcis’s comments were well-within the protections of the First Amendment, so they are lawful conduct. But under Pennsylvania law, it was entirely lawful to terminate her. For Aramark, a private employer, it was likely a business decision–those that patronize or support the team may not like the presence of Youcis in the ballpark.
The ACLU of Pennsylvania offered no defense:
They haven’t been, said Mary Catherine Roper, deputy legal director of ACLU of Pennsylvania.“Private employers don’t have to respect your views,” Roper said. “You don’t get to turn somebody else’s company into a platform for something they disagree with.”
Even if you have no sympathy for Youcis, or the alt-right, this story should trouble you–especially if you are a lawyer. As I discuss in Unraveled, a common ploy of the left is to use social pressure to force big law firms to drop conservative causes. Paul Clement had to drop his representation in the DOMA litigation after LGBT groups leaned on his firm. David Rivkin had to drop the case in House of Representatives v. Burwell after liberal groups–and perhaps even the Obama administration–leaned on his firm.
I had to chuckle at today’s press release in the New York Times extolling law firms who are coordinating to support gun control laws. There’s nothing new about law firms supporting causes on the left. The threat, however, is a blacklist for attorneys are law firms that support conservative causes.