Some colorful (ahem) corners of the Internet were abuzz this week after a report surfaced that an anonymous adult male fan of the cartoon show My Little Pony: Friendship is Magic was fired from his job after admitting his fandom to his coworkers. The firing of this “brony” (and let’s just assume for the sake of this post the story is true) prompted questions about the limits of employee workplace protections. Did this man’s termination violate his right to free expression? Answered simply, no. This episode is a useful reminder of the limits of constitutional protections in the private-sector workplace and the viability of at-will employment.
The First Amendment guarantees that our rights to freedom of speech and expression are shielded from state action. Private sector employers, however, are not state actors. A 2007 federal district court decision unambiguously held that “the protections guaranteed by the First Amendment of the U.S. Constitution don’t extend to private-sector employees.” Simple, right? Well, maybe not always. Employers should be aware that some states have their own laws or provisions in their state constitutions that transpose First Amendment-like protections into private workplaces.
A number of states have passed laws protecting employees from discrimination based on their political actions or beliefs. For example, the California Labor Code prohibits an employer from controlling an employee’s political activities or taking any action that would restrict an employee’s ability to be a candidate for office. A Connecticut statute bars discrimination against any employee for “exercise … of rights guaranteed by the First Amendment,” although that statute has been interpreted to protect employees who speak out on a matter of public concern. A 1983 decision from the U.S. Court of Appeals for the Third Circuit pointed to language in the Pennsylvania state constitution that said “every man may speak freely” and held that the termination of an employee for refusing to engage in certain political activities implicated important public policy considerations derived from either the First Amendment or the state constitution. But no subsequent case has gone this far, and it remains safe to assume that the First Amendment itself doesn’t apply to private-sector workplaces.
So, to all those bronies out there, keep reaching for that rainbow. Just not at work. That’s creepy. And it might get you fired. And there won’t be much you can do about it.