Category: Wrongful Termination

Discrimination Based on Sexual Orientation

Imagine this situation. You are a model employee at your company. You arrive to work early, stay late, and work hard. One day, your boss pulls you into his office with some unfortunate news. Your boss admits that you are a great worker. However, he says that he recently learned that you are gay, and for that reason alone, you’re fired. Did your boss break the law by firing you based on your sexual orientation? Although it might surprise you, under federal law, most courts have found this type of termination is perfectly legal.

Federal Law – Title VII

Title VII of the Civil Rights Act of 1964 is a federal law which prohibits many employers from discriminating against employees. Title VII makes it an “unlawful employment practice for an employer to fail or refuse to Rainbow Flaghire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. Thus, the question is whether discrimination based on sexual orientation is considered discrimination because of an individual’s sex. The Equal Employment Opportunity Commission takes the position that Title VII prohibits sexual orientation discrimination. In fact, earlier this year the EEOC filed two lawsuits on behalf of employees claiming they were discriminate against based on their sexual orientation. One of these lawsuits has already settled.

Despite the EEOC’s position on sexual orientation discrimination under Title VII, most courts around the Country have found Title VII does not prohibit sexual orientation discrimination. Last week, the Seventh Circuit Court of Appeals, which covers Illinois, also found Title VII does not cover sexual orientation discrimination. The Court relied heavily on Seventh Circuit precedent finding sexual orientation is not a Title VII protected characteristic. See Hamner v. St. Vincent Hosp. Health Care Ctr.., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000). In essence, the Court held Title VII prohibits discrimination based on a person’s gender, not a person’s sexual orientation. See Muhammad v. Caterpillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014). The Supreme Court has not ruled on the critical rift between the EEOC and most Circuit Courts.

Congress has attempted to change Title VII to include sexual orientation as a protected characteristic. Since 1994, every Congress except the 109th has proposed the Employment Non-Discrimination Act. The Act would amend Title VII to prohibit sexual orientation and gender identity discrimination. Until Congress passes any legislation or the Supreme Court rules on the issue, we are likely stuck with the current state-of-affairs regarding sexual orientation discrimination at the federal level.

State and Local Laws

Even though most courts have found federal law does not prohibit sexual orientation discrimination, some states have enacted legislation prohibiting the discrimination. For example, the Illinois Human Rights Act prohibits discrimination “against any individual because of his or her … sexual orientation … ” 775 ILCS 5/1-102(A). Some municipalities also prohibit discrimination within the city or county.  For example, Cook County prohibits sexual orientation discrimination in employment decisions. To see which states prohibit which types of discrimination, see this website created by the Human Rights Campaign. Under the “select and issue” tab, select “statewide employment laws & policies.”

Also keep in mind that even some employers are not subject to any anti-discrimination laws as to sexual orientation, they are free to implement their own policies that prohibit this type of discrimination. Although not legally required (at least no yet), it would still be the right thing to do.

Termination for Off-Duty Facebook Comments

In the past months, there have been a massive amount of protests across the Country.  These protests often involve some combination of the Black Lives Matter movement, officer-involved shootings, Donald Trump, and Hillary Clinton.  Obviously these are all hot-button topics that draw an immense amount of passion and enthusiasm from everyone involved.

So what happens when an employee says something while not at work about the protests that might be considered discriminatory or racist?  For example, in Richmond County, South Carolina, seven first responders have lost their jobs over social media comments about a Black Lives Matter protest which occurred on July 10, 2016.  One senior paramedic who worked for the company, Tommy Boland, commented on facebook that he will “donate to whoever runs over protesters in the roaddway (sic).”  He was terminated a few days later.

In Philadelphia just last week, an employee was fired after posting a rant about a Black Lives Matter protest on her facebook page.  Instead of following this opera signer’s more subtle approach to support his “All Lives Matter” cause, Diana posted the following on her facebook page:

           Facebook page of termination

She was soon fired as well.  But doesn’t the first amendment guarantee us the freedom of speech?!  This is America after all.

Wrongful Termination

Well… kind of.  The general rule in Illinois and most other states is that employers can terminate employees for any reason or no reason at all.  This is called at-will employment – the employee is working at the will of the employer.  If your boss does not like you playing Pokemon Go in your free time, he or she is likely free to legally terminate you for that reason.

However, like any other legal rule, there are exceptions that may prevent the employer from terminating an employee for comments made while not at work.  Here are some of the most common exceptions:

  1. Freedom of Speech

The First Amendment to the Constitution protects our freedom of speech.  However, the Amendment only prohibits the government from abridging freedom of speech, not private entities.  In essence, while the government cannot arrest you or otherwise punish you for making those unfortunate racist comments on facebook, your employer is usually free to terminate you based upon the comments made at home.

Public employers, on the other hand, do not have as much freedom as their private counterparts.  The Supreme Court has found that government officials are prohibited from retaliating against an employee because of the employee’s engagement in constitutionally protected political activity. See Elrod v. Burns, 427 U.S. 347 (1976).  In these cases, the employee must establish that he or she speaking as a citizen, rather than speaking on matters pursuant to employment duties. See Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007).

  1. Employment Contract

One way to avoid the often unfair at-will employment doctrine is for the employer and employee to enter into an employment agreement.  In the contract, the parties can agree that the employee can only be terminated for-cause, which can only be based on the employee’s misconduct while at work.  Government employees, union employees, and executives are generally more likely to be subject to an employment contract.  However, most individuals are not subject to such agreements, and are subject to the employment at-will doctrine.

  1. Concerted Activity under the National Labor Relations Act

Another potential reason an employer cannot legally fire an employee for comments made while off-duty is the worker’s comments are protected under the National Labor Relations Act (NLRA).  The NLRA prohibits most employers from retaliating against employees (whether in a union or not) when the employee engages in “concerted activity.”  This is defined as two or more employees taking action for their aid or protection regarding the terms of their employment.  Thus, an employee covered by the NLRA is generally free to complain about working conditions on facebook if he is doing so to potentially discuss the conditions with other employees.


Thus, even though this is the land of the free, employers are generally free to terminate employees for off-duty comments on facebook and elsewhere.  I have provided some exceptions to the general rule that are likely to apply to off-duty comments.  Obviously there are other exceptions to the general at-will employment doctrine (such as the prohibition to discriminate on the basis of race), but I only the listed those most likely to apply in the situation.