The Washington PostDemocracy Dies in Darkness

Businesses’ First Amendment rights don’t extend to their employees

A pedestrian walks past a sign reading “All are Welcome” at Brown Street United Methodist Church in downtown in Lafayette, Indiana March 31, 2015. Indiana’s Republican Governor Mike Pence, responding to national outrage over the state’s new Religious Freedom Restoration Act, said on Tuesday he will “fix” it to make clear businesses cannot use the law to deny services to same-sex couples. REUTERS/Nate Chute
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A lot of ink has been spilled in recent days over Indiana’s new “religious objection” law. Some business owners say they need to safeguard First Amendment rights to religious expression, while opponents vilify it as a pretext for discrimination. Rather fewer people pay attention to the rights of business employees to express their beliefs. What happened recently to Shanna Tippen of Pine Bluff, Ark. reminds us that most American workers don’t have a right to express themselves without being fired.

Tippen, a minimum wage motel employee at a Days Inn in Pine Bluff, agreed to be interviewed for a Washington Post story in mid-February about Arkansas’ newly enacted 25-cent minimum wage hike and its effect on the working poor. Tippen shared some details of her challenging household economics with The Post’s Chico Harland, and also mentioned that she was one of the many who signed petitions to get the minimum wage hike on the Arkansas ballot last year.

This week brought a dispiriting follow-up story: Tippen called Harlan to share the news that she was fired by the owner of the motel for talking to The Post. Realizing that journalists often run the risk of unintentionally influencing events in a story they cover, Harlan lamented that “writing about Tippen’s plight may have made her situation worse.”

[After a story is published, a minimum wage worker loses her job]

Harlan heard a different story from the Days Inn’s general manager Herry Patel, who claims that Tippen wasn’t fired, but instead walked out after a disagreement. However, Patel had also called Tippen stupid for talking to The Post, had told Harlan that he thought the wage hike was “bad for Arkansas” because “everybody wants free money in Pine Bluff,” and subsequently threatened Harlan with a lawsuit if the story ran. Even if the general manager’s story is as he claims it is, the more important point about American law is that he could have fired Tippen for talking to The Post, with no legal repercussions.

Many people assume that First Amendment rights to free expression should insulate them from punishment by their employer for speech off the job that has little or nothing to do with work. In one national survey, 96 percent said firing a worker for expressing political views with which the employer disagrees with is “unacceptable.” Unfortunately, many workers mistakenly assume that unacceptable equals protection: in that same survey, 80 percent said (incorrectly) that it’s illegal to fire someone for expressing contrary political views.

The employment-at-will system that dominates labor law in the U.S. lets an employer fire a worker for just about any reason (or no reason) without legal liability. There are several exceptions, most notably bans on discrimination, as well as employment contracts that limit causes for termination. There is also a ‘public policy’ exception—which suggests that workers should not be subject to a punitive action by an employer that would be an affront to public interest.  For example, workers should not be fired for refusing to commit perjury at their employer’s request or for taking time off for jury duty. It would violate the public interest if employees could be fired for doing these things.

Arkansas is an employment-at-will state, along with every other state except (oddly) Montana. Shanna Tippen, like most American workers is employed at-will, which means that she can be fired for expressing an opinion to a reporter … or to a friend or a stranger or a brick wall for that matter. She would have some protection—and possibly a wrongful termination claim—if she had a public sector job. In the private sector, however, First Amendment rights for individual workers to keep their jobs don’t exist.

The most plausible reason that most Americans disapprove of firing people for their political views – and indeed believe that it is illegal – is that they think that free expression is in the public interest. Healthy democracy should allow people to engage in politics and say what they like without fearing that they will lose their jobs for saying something that their employer doesn’t like. There are a few states where political activity does get some protection from an employer’s wrath, even in the private sector. California, for instance, bars employers from restricting or controlling workers’ political activity off the job. A few states have broad-based “lifestyle discrimination” statutes preventing employers for penalizing workers for anything they do off the job that is legal, as long as it doesn’t create a conflict of interest or hamper the employee’s ability to do the job. Unfortunately, Tippen doesn’t live in one of those states, so if she was fired for talking to a reporter about her life on the minimum wage and her views on the law, she has no recourse.

The Days Inn in Pine Bluff, Tippen’s former employer, is a local motel franchise. The firm that owns and franchises the Days Inn brand responded to the controversy by saying, “While we can’t speak to the specifics of this or any particular situation at a franchised location, please know that ours is an organization which values and respects the contributions of all associates and that we encourage each of our franchisees to do the same.” Wyndham, which controls more than two dozen hotel brands including household names Ramada, Super 8, Days Inn, Travelodge, Microtel, and many others, lists among its core values “act with integrity in all that we do” and “respect everyone, everywhere.” It boasts in very large type on its home page that “we continue to raise the bar on ethical leadership.”

Wyndham may not be legally responsible for the behavior of its franchisee, beyond the terms laid out in their contractual arrangement. However, the contrast between Wyndham’s attitude to this controversy and the responses of other corporate entities (including Wal-Mart) to Indiana’s religious objection law is striking. Norms appear to be changing such that even passive assent to discrimination based on sexual identity damages a corporation’s brand. What happened in Arkansas suggests that corporations are much less worried about discrimination against employees based on their political opinions.

Bruce Barry is a professor of management at Vanderbilt University. He is the author of Speechless: The Erosion of Free Expression in the American Workplace.