Thursday, August 22, 2013

Ayo Kimathi may be protected from termination for his racist views - but you may not have similar protection

I have previously written two posts that discuss Ayo Kimathi, his political views, and the demands that he be fired from his job at the Department of Homeland Security. In one of the posts, I threw out an additional question - if a DHS employee supported Bradley Manning's freedom, could that employee be fired because of his or her political views?

Now I'm going to state something obvious, but important - the Department of Homeland Security is a government agency.

Many of us, myself included, do not work for a government agency. Instead, we work for private businesses.

That can make all the difference regarding whether or not we can be fired for our political views.

Now there are certain protections that you have from firing in the United States, regardless of whether you work for the public sector or the private sector. Nolo lists these protections:

Federal law makes it illegal for most employers to fire an employee because of the employee's race, gender, national origin, disability, religion, genetic information, or age (if the person is at least 40 years old). Federal law also prohibits most employers from firing someone because that person is pregnant or has a medical condition related to pregnancy or childbirth.

Individual states may have additional protections against firing - for example, some states prohibit people from being fired based upon their sexual orientation.

Notice one thing that DOESN'T appear on that list?

Political views.

Now many people think that the whole political views thingie was settled when Joseph McCarthy was disgraced. You can't be fired for being a Commie (or a black racist, or a supporter of a convicted criminal), can you?

Michael Italie found out the answer the hard way:

On Oct. 22 [2001], a sewing-machine operator named Michael Italie was fired by Goodwill Industries, the network of nonprofit groups best-known for collecting and selling used clothing and furniture in order to provide job training for the disabled....

At 5 p.m., half an hour before the conclusion of his 10-and-a-half-hour shift, Italie's supervisor called him into the personnel office, where he was greeted by the plant's head of security. "Because of your views of the U.S. government, which are contrary to those of this agency, you are a disruptive force and cannot work here anymore," he said, according to Italie. "Take your things and go."

Italie was a member of the Socialist Workers Party. This was not a secret; he was very publicly running for mayor of Miami. Although he wasn't campaigning at Goodwill, the public knowledge of his political beliefs was enough to get him fired.

Italie went to the American Civil Liberties Union for help...and received a surprise.

[W]hen the local chapter of the American Civil Liberties Union looked into Italie's case, it discovered...that Goodwill was on strong legal footing. "There is no legal case to be brought," explains Miami chapter president Lida Rodriguez-Taseff. "The law is pretty clear that a private employer can fire someone based on their political speech even when that political speech does not affect the terms and conditions of employment."

But what applies to Michael Italie may not apply to Ayo Kimathi.

If local or state law doesn't prohibit it, private employers generally can terminate an individual because of his or her political beliefs. The First Amendment, however, restricts public employers from engaging in this practice.

Remember that the First Amendment itself only says that Congress (and, by extension, government) cannot do certain things. Now perhaps other laws may restrict private employers, but not the First Amendment itself. So if you work in the private sector, and your company tells you to shut up, you can't claim that your First Amendment rights are being violated. (Perhaps some other right is being violated.)

But let's get back to Ayo Kimathi. The very fact that he works for the government itself gives him some level of protection against termination for his political views. Now perhaps Kimathi will get fired for some other reason....
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