HR Management & Compliance

Firing Drummer Was a Protected Act of Free Expression

We are often asked whether being an “at-will” employer means a company can terminate somebody for a discriminatory reason—for example, because she is a woman or a person of color. The answer is no. The at-will-employment doctrine does not protect employers from the consequences of discriminatory job actions. But the 2nd District Court of Appeal recently held that some employers may be immune from the consequences of discriminatory terminations.

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Eddie, Hold on to Me

Edward Mahoney is a rock and roll singer-songwriter better known as Eddie Money. Between 1976 and 1989, he had a handful of top 20 hits, including “Two Tickets to Paradise,” “Take Me Home Tonight,” and “Baby Hold On.” He has played concerts across the country throughout his career, firing his band members when he isn’t touring and rehiring them when he’s ready to hit the road again.

Glenn Symmonds is a musician who worked for Money from 1974 until 2015. During that time, he performed primarily as a drummer at concerts and in the studio and played in bands that opened for Money. He also sometimes managed merchandise sales at concerts. Unfortunately, Symmonds injured his back, making it difficult to lift heavy boxes. He also was diagnosed with bladder cancer, which required him to wear diapers.

Symmonds needed accommodations to perform his job, including taking breaks during assignments so he could recover from the exertion and change out of his soiled diapers or underclothes. Money would quip about his condition during concerts, referring to Symmonds as “Chemo the Drummer” and joking that the concert tour was sponsored by Depends, a brand of adult diaper.

In 2015, Money rehired his band after a layoff, but he didn’t rehire Symmonds, opting instead to use a younger drummer who wasn’t disabled. Symmonds maintained that he was better skilled and qualified than his replacement, and claimed his age, cancer, and back condition were actually the “substantial motivating reasons for his termination.” He filed suit, arguing that Money’s actions constituted unlawful discrimination, harassment, and failure to accommodate under the California Fair Employment and Housing Act (FEHA).

Money responded that he didn’t discriminatorily fire Symmonds; rather, he wanted to perform with his adult children, which was why he didn’t rehire his longtime drummer. He also noted that he is older than Symmonds, the Depends joke was a reference to himself, and other band members he did rehire are in their 50s. Ordinarily, that factual dispute would be resolved at trial, but Money used a special procedural device to stop the case from getting that far.

SLAPP You Home Tonight

After being sued, Money filed an early motion to strike Symmonds’ discriminatory termination claims under a special provision of the California Code of Civil Procedure, commonly called an anti-SLAPP motion (i.e., a motion to stop a “strategic lawsuit against public participation”). Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from constitutionally protected free speech or petition rights that are a matter of public interest. If the defendant makes that showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.

The public policy asserted by Money was the First Amendment to the U.S. Constitution, which gave him the right to select anyone he wanted to perform music for the public with him. The trial court disagreed. It found that Money’s jokes about Depends and Chemo the Drummer and his failure to engage in an interactive process to reasonably accommodate Symmonds’ disability were not actions protected by the First Amendment.

The trial court found that although the termination affected constitutionally protected free speech activity, that didn’t mean a discriminatory or retaliatory termination was an act in furtherance of free-speech rights. Because Money didn’t meet his burden of establishing the first step, the trial court denied the anti-SLAPP motion and didn’t address the second step.

No Tickets to Paradise

Money appealed, and the court of appeal reversed the trial court, finding that “music, as a form of expression and communication, is protected under the First Amendment.” According to the court, acts that “advance or assist” the creation and performance of artistic works are acts in furtherance of the right to free speech for anti-SLAPP purposes. The court found that “a singer’s selection of the musicians that play with him both advances and assists the performance of the music, and therefore is an act in furtherance of his exercise of the right of free speech.” The court rejected the earlier cases to the contrary on which the trial court relied.

The court of appeal found that musical performances are matters of public interest, noting that Money “has sold millions of records, [has] hundreds of thousands of people following him on social media, . . . [and] continue[s] to perform at concerts across the country.” As a result, constitutional protections applied in this case because his termination decision was an act in furtherance of his free-speech rights in connection with an issue of public interest. Because the discriminatory motive couldn’t be separated from the termination itself, the termination was protected even if it was discriminatory.

The court of appeal reversed the trial court’s denial of the anti-SLAPP motion and sent the case back to the lower court, where Symmonds will be required to sustain his burden on the second step of the anti-SLAPP analysis and prove he has a likelihood of prevailing on the merits. If not, his claims challenging his termination will be dismissed. Only his termination claims were the subject of Money’s anti-SLAPP motion, so his other claims (ranging from a failure to accommodate his disability, to sexual harassment of his wife ) are unaffected by the ruling. Symmonds v. Mahoney (California Court of Appeal, 2nd Appellate District, 2/1/19).

Bottom Line

The court of appeal noted that “balancing the compelling need to protect employees . . . with free speech rights can . . . present very difficult questions . . . [in] cases like this one, in which antidiscrimination protections run up against an employer’s free speech rights. . . . [R]easonable minds may differ on the proper resolution.” The California Supreme Court is currently reviewing several anti-SLAPP cases, so the law on this issue may soon change. But for the moment, putting together a backup band is a constitutionally protected act of free expression—it’s not only rock and roll.

Mark SchickmanMark I. Schickman is of counsel with Freeland Cooper & Foreman LLP in San Francisco and Editor of California Employment Law Letter. You can reach him at 415-541-0200 or schickman@freelandlaw.com.