Protesting and Employment Law: Things to Consider While Fighting for Change

Black people, people of color and the LGBTQ+ community are all at the center of the fight for equality, long overdue justice and the end of police brutality, once and for all. These groups of people not only have their fight in common, but they’re also protected groups when it comes to discrimination, with an ongoing fight for the LGBTQ+ community to be federally protected by employment discrimination. This got us thinking… Under what circumstances can an employee be fired for protesting racial and social injustice, especially when in a protected class? Like most questions and circumstances of the law, the answer is, “It depends.”

To get expert insights, we spoke with Natalie Pedersen, J.D., Associate Professor of Legal Studies at Drexel University, Lebow College of Business.

1. Can an employee be fired for peacefully protesting?

In many cases, an employee can be fired for peacefully protesting.  Most states in the U.S are at-will employment states, meaning an employee can be fired at any time for any reason, excepting an illegal one.  So, unless off-duty legal conduct is specifically protected in the state, an at-will worker can be fired for taking part in such a protest.  Several states do have such off-duty conduct protections, including, California, New York and Louisiana.  Therefore, employers would be wise to check state and local laws before firing an employee for protesting during non-work hours.

Additionally, the First Amendment also protects government worker’s participation in peaceful protests during non-work hours, to a certain extent.  As long as the protest is about a matter of public concern, a government worker can participate on non-work time as long as the employee’s interest in speaking out outweighs the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees. Under the Hatch Act, however, public employees who protest on non-work time should be careful not to wear anything or do anything that identifies their employer.

Finally, employees who have signed a contract or operate under a collective bargaining agreement can generally only be fired for cause and attending a peaceful protest during non-work time usually would not qualify unless it can be shown that attendance at the protest adversely affected or affects the employer’s business.

2. For an employee to file a claim against their employer for being fired for protesting, must there be discrimination present at all?

There does not need to be discrimination present if the employee has any of the protections discussed above (for cause protection, collective bargaining agreement, or a public employee speaking on a matter of public concern, or an employee in a state protecting legal off-duty conduct).

If the employee does not have any of the protections discussed and can show that the termination is motivated, even in part, by his or her race, then the employee can sue under Title VII of the Civil Rights Act of 1964.  This prohibits employers from making adverse employment decisions on the basis of race, religion, national origin, color or sex (which now includes sexual orientation and gender identity under the Supreme Court’s recent decision in Bostock v. Clayton County).

3. There are matters of civic duty that could invoke discrimination or bring an employee to be illegally fired, such as voting or jury duty… Does protesting count as a civic duty?

This really depends on the state. Here is a link to protected political activities by state.

4. Are there protections for an employee that misses a day of work to protest discrimination against protected groups? What if they belong to that protected group? What if they do not?

Generally, there are no protections for an employee who misses work to protest, whether they belong to a protected group or not.  The only exception would be if an employer treats employees who wish to protest differently.

5. Can an employer retaliate against an employee for protesting protected peoples such as LGBTQ marches and Black Lives Matter protests? Does it matter whether or not they missed a day of work for this activity?

An employer cannot selectively choose which groups to protect.  Thus, an employer should not allow employees to miss work for a Black Lives Matter protest, but not for an LGBTQ march as this would be discriminatory under Title VII (as recently interpreted by the Supreme Court to protect both sexual orientation and gender identity).  Note that there may be some religious exceptions here, but overall, employers should be consistent in their policies around off-duty protests and allowing missed time for protests.

6. Do any of the answers to these questions change if the employee is not on the side of BLM or LGBTQ but is on the other side, counter-protesting these causes?

This could potentially change if the protest is seen as adversely affecting the interest of the employer.  For instance, several workers at the Charlottesville protest were fired because their views adversely impacted their employer.  More recently a Fed-Ex worker was fired for re-enacting George Floyd’s death during a counter-protest to a BLM protest because his actions were not in line with the expectation of Fed-Ex for their employees.  Additionally, employers need to be careful not to tolerate even off-duty behavior that could create a hostile work environment for protected groups in their workplace, which the Fed-Ex employee’s behavior certainly could.