Has anyone actually been fired for saying something privately in their own home that was caught by a (probably illegal) video or audio recording?
The 10th Amendment.
The Constitution doesn’t grant rights, it protects them.
I believe it would be firstly the 9th:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The 10th is about the States and the people retaining the ability to act or legislate generally on anything not federalized in the Constitution and is how come individual states may protect classes beyond those federally protected e.g. the California law about not firing for political expression.
I’m sympathetic to that view, but if that’s the case, at will employment should be recognized by the courts as trumping all existing statutes, including the Civil Rights Act.
Might not have been his home but I don’t think Hulk Hogan knew he was been videotaped in a situation and setting most would consider to be private. That video led to his firing.
He’s a celebrity – doesn’t it make perfect sense that a celebrity, whose job is intimately tied with how he is viewed by the public, might have his career harmed if he’s caught using racial slurs? Are you saying that the networks must keep him employed even if their research strongly indicates their ratings will be harmed?
To this non-American, it seems that we are talking about a societal, not a legal problem.
The problem arises when a sufficiently large, loud or otherwise visible and influential group of people - which these days need not even be particularly numerous - decide that Nazis (Communists, pro-lifers, racists, bigots, homophobes, suspected child abusers,…) are scum, and that scum deserve everything that happens to them - up to and including the loss of opportunity to make an honest living. And that it is perfectly fine to speed things along by smearing and threatening to boycott employees who employ scum, because who would choose to knowingly associate with scum other than those who themselves are scum or sympathisers of scum? Guilt by association and all that (note: the way I see it, treating employment relations as a simple matter of mutual freedom of association is a peculiarly American worldview. Not sure of the relevance of this tidbit, but there it is).
And the problem is exacerbated by the fact that, in the age of social media and “viral” stories, there is precious little certainty about who and what will go “viral” and become widely known, and which virtual lynch mob (who happen to be absolutely confident that they will never, ever be caught doing anything nearly as controversial) will pick it up and decide to take justice in their hands.
To me, the general idea (of course, there might be exceptions I’ve never contemplated) of boycotting a company for non-business reasons seems rather weird and irrational. If I’m satisfied with the customer service - let alone if I’m not even a customer - I have zero interest in the workers’ political opinions or how they choose to spend their free time. However, there apparently are enough customers who disagree with my approach. If one rejects the concept that employees should be protected against being fired for non-business related reasons, I don’t think a solution can be found.
I don’t know about the non-business related reasons.
We have a selection of protected reasons that we are not allowed to fire employees over, and that makes sense, as those are all things that employees have been unfairly discriminated against in the past.
There is nothing wrong with discrimination. It is only wrong to discriminate against people for things that they have no control over, and have been historically discriminated against. I discriminate when I hire. I have had people come in who were not qualified for the position, so I did not hire them. I have had employees who turned out not to be a good fit for the job, so I have terminated them.
As far as being protected from being fired for all non-business related reasons, lets say one of your employees sleeps with your wife. That’s not a business reason, and there is no firing with cause, but would you really object to the removal of that employee?
(my bold)
This is overly simplistic and not accurate. There are numerous things that are protected that do not fall in these categories, things like jury service, voting, whistle blowing, union organizing, pregnancy, retaliatory actions, etc.
The case where there are angry internet mobs calling for someone’s head may be relatively novel, but wrongful termination is not. The conceit of the thread is whether or not the current list of protections is exactly right for all time, or perhaps maybe it can/should be modified.
Those are actions, not political ideologies. Some of which you have no control over, like jury service, others have been historically discriminated against, like voting, union organizing, whistle blowing, or pregnancy. I am not sure what you mean by retaliatory actions, as the employee retaliating against the employer is not protected, and if you are saying that the employer may not retaliate for the employee performing these actions, well yeah, but that’s a separate point, not an etc.
I am not sure where you are disagreeing with me, all federally protected classes and activities are protected because they have been, at some point, used to harm the people who fall into those classes or activities. There is no protection for attending a Smurf convention, because there have not been historical cases of entire cohorts of people denied a job due to their attendance. Can you name a protection that was not put into place to protect those who have been historically discriminated against?
As is, I could fire an employee for participating in either a nazi rally or a gay pride parade. I would only have any inclination towards firing in the one case, and not in the other. I would stop using the services of a business that did fire their employee for participating in a gay pride parade, but I would support their legal decision to do so. I would stop using the services of a business that had employees that attended white supremacist rallies, but I would support their legal decision to keep them on, if that is their desire. Participating in protests and rallies is not something that you have to do.
Here in Ohio, I can fire you for being gay, or even if I suspect that you are gay. That’s not a protected class. Why should marching in a nazi rally be protected more than your personal sexual orientation?
Too late to edit.
Line should read
Can you name a protection that was not put into place to protect those who have been ***not been ***historically discriminated against?
I’m disagreeing with you because your description of what is protected is not accurate. The criteria you laid out was immutable characteristics *and *historical discrimination. Serving on a jury does not meet both those criteria. You are right that it is an action, but that’s my point. It’s not an immutable characteristic.
The point is that states have historically decided to protect many things that don’t meet your criteria so to simply handwave that away saying that we only offer protection for things that they have no control over, and have been historically discriminated against is not accurate, because *today *there are laws on the books that go beyond that.
Did you see post #16 and #22? Trump supporter would get protection in Seattle.
It seems to me that in Colorado, a person cannot be fired for being a Nazi in their off-time, but CAN be fired for smoking medical marijuana in their off-time. Strange.
And I find it unlikely that if an employee of yours used his off-duty time to picket your business and constantly spoke publicly about how much you and your family sucked, that you would still defend his right not to be fired.
I agree what’s changed lately is social media/internet mob action becoming more prominent.
Bone countered that some statutory protections of employment wrt political affiliation or views have been around awhile. Apparently so, but I still agree with you that the moving indicator right now is how growth in couch sitting mob action facilitated by the internet. That might require laws to adapt. Though I’m not convinced the OP proposal is an urgent priority right now. Maybe that will equilibrate itself by the social reaction of (I believe) reasonable people not to use ‘speech has consequences’ as the excuse to try to get people fired for non PC (which can be various people’s opposing forms of PC, but tends more often to be conventional left-PC) statements they don’t make in connection with their work.
You asked for an example. I provided one.
So why the religious protection? Many aspects of religion are quite offensive. Why are those concepts protected?
I apologize if you misunderstood then, I did not mean the “and” to be exclusive, but to be inclusive. The protected statuses are things that you cannot change about yourself, and things that have been historically discriminated against. I can see how it is ambiguous, and you would take it as exclusive, but I can’t see how to change it to be unambiguously inclusive, and “or” doesn’t seem to fit.
But, grammar aside, if your point is that you thought I meant that they had to fit both categories, I apologize that I led you to that misunderstanding.
Political ideology is something that has been historically discriminated against, so that fits in with what I said.
But, you also have to realize that not everything that has been historically discriminated against is protected. People have historically been discriminated against because they were ugly, because they were fat, because they had annoying voices, etc. and there are no protections for those groups of people. There is no federal protection for political ideology, it is only some states and municipalities. Employment laws in seattle means very little to me in Ohio.
I would be against adding political ideology to the federally protected classes, and would be against adding them locally either. If your boss or co-workers know your political ideology, you are doing something wrong in the fist place. Whether you are on my side or the other, I really don’t like talking politics at work, and I discourage it in my employees. It causes too much drama, even among those who nominally agree. I feel uncomfortable discussing my politics with employees, as I know I am in a position of power over them, and they are in a position where it may be awkward for them to disagree, and that’s not a cool place to put employees. I know, I’ve been in political disagreements with bosses many times before. And yeah, I’ve had my job threatened by my boss for disagreeing with him, and even once came to I suppose a mutual agreement that I find employment elsewhere due to a boss’s politics.
If you can keep your politics out of the workplace, then I don’t care. But if you can’t shut up while I am paying you, or if you go to some white supremacist rally and get recognized by my clients, then you have brought your politics into my workplace, and I do not see why my other employees and I should suffer due to the actions of one employee who I cannot remove from my employ for causing that damage.
Okay. Do you think there should be a law that would have protected the Hulkster?
I’m not sure that’s a very strong distinction though since the OP proposal comes from the impression that it’s becoming more common to bow to pressure from internet mobs to fire people for certain political expression not directly related to their jobs.
You can debate whether that’s a significant trend or even accept that it is but claim it’s always a healthy example of ‘speech has consequences’, or sometimes unhealthy but not to the extent of laws being a solution. Somewhere in there I might agree. But I think a theme in favor of the proposal is that it’s an emerging problem, so not directly relevant to who was discriminated against in the past.
Also ‘have been historically discriminated against’ is a fall back it seems from ‘things you can’t help being’ which as you noted already had the major exception of religious belief. Actually major enough IMO to invalidate that principal. And the Founders didn’t specifically include religion because people had been discriminated against, boo hoo, we’re the good guys we’ll right all past wrongs (IOW a common excess of the modern soft left IMO, excessive opinion of its own righteousness). They were thinking more I believe of religious conflict destabilizing society with horrific consequences as it had not so long ago in Europe from their vantage point in time. I would think of protection from internet mob action over political expression in the same terms, potential destabilization. Though again I think it’s something to watch, not a clearly urgent need or clearly productive to start legislating this minute.
You think there might be anything in the constitution about that?
And religion is not absolutely protected. If I hire a muslim to work in a hair salon, then I am going to expect hi to cut a woman’s hair. If he refuses to do so on religious grounds, then I don’t have to hire him, and I could even fire him.
If someone follows a religion that requires them to break laws, then religious protection is no defense. If someone uses their religion to insult or discriminate against protected class, that’s not protected.
So, yes, many aspects of religion may be offensive, but you can fire people for being offensive, even if they are offensive for a religious reason.