We wrote yesterday about Gallaudet University’s suspension of its Chief Diversity Officer, Angela McCaskill, for signing a petition to place Maryland’s law allowing same-sex marriage up for a public vote via referendum. The action has been criticized, even drawing fire in an editorial in the Washington Post. The McCaskill case raises this important question: Can an executive be fired for political activity at work or outside of work?
The short answer: probably yes, but it depends a lot on the circumstances and the state law that would apply to any claim arising out of the dismissal. This is another case where your mileage may vary, as they say.
Generally, an employer can fire an executive working “at will” for “good reason, no reason, or bad reason” without incurring liability.
That’s the basic rule in the private sector. Government employees may have different rights in this regard – sometimes a government employee’s speech (and therefore her job) is protected by the First Amendment, as explained in this Supreme Court of Indiana case holding that a firefighter might be protected from dismissal for emails criticizing a candidate for local office. But this protection doesn’t apply to some employees – especially higher-level ones, as the Eleventh Circuit Court of Appeals held this week in Underwood v. Harkins, where the court affirmed a new city clerk’s right to fire her defeated rival for the post, who was a confidential deputy clerk. We’ve written more about the free speech rights of government employees here. It bears noting, too, that some free speech-related conduct by some Federal employees is subject to certain limitations under what is known as the Hatch Act.
Even for private sector employers, state law can modify the basic at-will rule. It prohibits employers from firing employees for expressing political views in a minority of states, including at least Louisiana, Connecticut, California and South Carolina. South Carolina’s law, for example, makes it a misdemeanor to “discharge a citizen from employment or occupation…because of political opinions or the exercise of political rights and privileges.” Another minority of states – notably including New York – prohibit employers from discharging employees for political views or opinions shared outside of work. New York’s law protects employees who run for office, campaign for a candidate, or go to fundraisers.
So if you can’t (or won’t) keep your political views quiet, it may be wise to be careful about expressing them if you’re an executive in an at-will situation. And if you manage a business that wants to fire executive so-and-so for the political buttons on her lapel or her out-of-work campaigning, make sure the law of your state will let you do so. It bears repeating this is a particularly complex area, where specific legal guidance can be helpful.
We’ll keep you posted on the Gallaudet situation. Until then, remember to get out and vote (which in some states you can do already). But, of course, you didn’t hear me tell you that.