Can Colin Kaepernick (or you) be fired for taking a political stand?
San Francisco 49ers quarterback Colin Kaepernick definitely has the right, as a citizen, to kneel down during the national anthem.
The First Amendment to the United States Constitution and numerous Supreme Court rulings have made this clear.
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What is less clear, however, is the extent to which U.S. law protects the controversial quarterback – or anyone else who takes a political stance at work – from being disciplined by their employer.
According to Equity in the workplace, a national non-profit organization that defends employee rights, most workers in the private sector are not protected from reprisals for expressing their political beliefs at work. Most employees in the United States, after all, are âat will,â which means they can be fired for just about any reason or no reason. Only certain protected categories, such as race, ethnicity, gender, disability or religion, are protected by federal law.
Public sector employees generally enjoy much greater protections when it comes to political expression in the workplace. The The Supreme Court has ruled – most recently with a ruling involving a New Jersey police officer who was demoted for buying a court sign for a mayoral candidate challenged by his superiors – that public employers cannot discipline an employee for being engaged in political activity unless that activity disrupts the workplace in some way.
As with the right of public sectors to discuss or display their political beliefs, how an employer can draw the line between activity that disrupts the workplace will always be subject to a wide range of interpretations. , and will undoubtedly be hotly debated in cases where a manager disciplines an employee for what he considers disruptive behavior.
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But only a handful of states – New York, California, North Dakota, and the District of Columbia – have laws that explicitly protect private sector employees from discrimination on the basis of affiliation or political opinion. Some cities, like Seattle and Madison, Wisconsin, have also implemented similar laws.
Less constraints for private employers
Most private sector employers are free to impose a wide range of restrictions on political expression in the workplace. They can prevent employees from wearing political badges or discussing politics at work. They can also fire an employee for political beliefs that he expresses outside of his job.
In 2004, for example, an Alabama woman, Lynne Gobbell, was fired for having a John Kerry bumper sticker on her car while working for a boss who was a fan of George W. Bush. (This story ended happily for Gobbell, who was awarded a job by the Kerry Campaign after being alerted to his story.)
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It is also legal for most private employers to make hiring decisions based on political beliefs. Indeed, there are many private organizations that are explicitly political in their mission and only hire employees who share beliefs that match their mission. Political parties and political advocacy groups, for example. The National Rifle Association is probably not inclined to hire those who show up for job interviews with Hillary Clinton bumper stickers, for example.
A major exception, of course, concerns trade union organization. For more than 80 years, the federal government has prohibited private sector employers from retaliating against employees for union activities, including discussing union organizing with colleagues, attending union meetings or distributing union literature to co-workers as long as these activities do not interfere with work.
Over the decades, the National Labor Relations Board has made a number of decisions regarding how employers can restrict union activity during working hours. According to Lisa Guerin, a labor lawyer, employers are allowed to prohibit employees from discussing non-work-related issues at work, but they are not allowed to designate union activity as the only prohibited topic of discussion.
Workers who unionize often enjoy additional political speech protections in the collective agreement, including a management agreement not to retaliate against workers who engage in political activity outside of work. This is of course relevant to the case of Kaepernick, who like all players in the National Football League is covered by a collective agreement between the players’ union and the league.
So could Kaepernick be fired for taking a stand on the national anthem his boss doesn’t like? The short answer is: in most cases, yes.
But just like the NFL, most employers recognize that firing employees for expressing political views may be legal, but it’s not necessarily good for business.