The UC Irvine-Erwin Chemerinsky debacle has been covered extensively in the blogosphere — Walter has a roundup of links over at Point of Law. One thing is for certain, though: regardless of the wisdom of UC Irvine’s actions, it clearly has the right to choose its dean based on any (non-discriminatory) criteria it wants. If the university isn’t happy with Chemerinsky’s ideological viewpoint, it obviously has the right to choose someone more compatible, right?
Well, maybe not, as Eugene Volokh explains. Under the wonders of California employment law, the mere fact that someone has abhorrent views doesn’t give you the right to fire him, and it doesn’t give you the right to decide not to hire him:
In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer’s customers, donors, employees, or others.
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So it seems that an employer’s policy (written or not) that it won’t hire or won’t retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.
Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer’s customers would be deeply alienated by the person’s statements (past or future).
That one may well fall under a “damned if you do, damned if you don’t” situation; hiring an outspoken Klansmen will expose employers to potential liability for creating a racially hostile work environment.
And as a special employment-law related bonus: the AP explains that companies that might want to try to save money on health insurance by financially incentivizing employees to stay healthy have to worry about HIPAA (if they provide too much in the way of incentives), and the Americans with Disabilities Act (if employees can convince a court that their obesity is a disability).
2 Comments
I generally take the position that there should be freedom for the employer to hire and fire for reasons it sees fit. But as long as we’re way, way beyond that under American law, I guess I’m sympathetic to laws forbidding hiring decisions hinging (solely) on politics or views. Mr. Volokh’s spectre of Nazis and Klansmen ascending to deanship of California’s law schools is a little dubious, but it appears that this – not a potential Chemerinksy lawsuit – is his concern (and I didn’t review all the caselaw he cites, but is there really a case like this?).
“Anti-discrimination” laws focused on race or ethnicity are obviously made for the benefit of non-white persons. They have hit our society hard, with hair-trigger filings by the thousand that are often, as court decisions show, meritless. On the rare occasion they’re brought by whites, the facts are so heavily on the complainant side as to deserve summary judgment.
So, say you’re a person – say, a (gasp! white) law professor – who’s noticed this and has spoken frankly about it, perhaps even written about it. Wouldn’t be a little sweet justice if your law school couldn’t fire you just for saying so? I think so.
Relating to your final paragraph:
I have often wondered how draconian anti-smoking laws pass muster. After all, isn’t smoking an addiciton, and, hence, ADA-covered? So, shouldn’t my employer have to make “reasonable accommodations” for my smoking? And don’t strict anti-smoking laws prevent that?
Well, perhaps another gold mine for an employment law attorney, provided they can overcome the demonization of smokers we have had for the past decade or two.