The world watched as thousands marched in protest and others stormed the US Capital Building this past week. The identities of few but the faces of many have been displayed on mainstream media and social media channels. Some with more frequency than others. Some of those faces may belong to your employees.
Clearly, not all in protest stormed the Capital Building. An argument can be made that many that assembled were exercising their constitutional right to assemble and the right to free speech to dispute what they believed to be a political injustice. Others, took the right to assemble and free speech outside the constitutional protections and destroyed property, trespassed onto federally protected property, assaulted and battered, caused the death of at least 4 individuals and disrupted the U.S. Congress in both the House and the Senate.
Illinois employers may wonder whether they can and should terminate employees who engaged in these protests, even the peaceful protests. Despite having one of the most liberal human rights acts in the nation, the Illinois Human Rights Act is silent with respect to private employer discrimination based on political party affiliation and political speech. The Illinois Human Rights Act prohibits discrimination based on specific "protected classes" including race, color, religion, sex (including sexual harassment), national origin, ancestry, age (40 and over), order of protection status, marital status, sexual orientation (including gender-related identity), physical or mental disability, and military status or unfavorable discharge from military service. The Act also prohibits discrimination because of pregnancy, citizenship status and arrest record in employment decisions, and discrimination based on familial status and arrest record in real estate transactions. Political affiliation is not mentioned.
For private employers, there is no federal restriction based on party affiliation either. The First Amendment of the United States Constitution protects against governmental restriction of speech, assembly and religion:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Notably, the First Amendment only extends to government action. It does not address whether private employers can restrict speech and assembly. There is no federal statute prohibiting termination based on political affiliation or speech.
Even though the laws are pro-employer with respect to this issue of political affiliation and lawful protests, employers should be careful in terminating a person based on party affiliation or political speech. It could have an unwarranted and detrimental effect on morale in the workplace. In addition, to the extent that the termination could be viewed as termination based on one of the protected classes (race, age, religion, etc.) employers may be subjecting themselves to a discrimination suit.
A different view may be taken if the person has been involved in violent or criminal protests. Under the Illinois Human Rights Act, an employer cannot terminate on the basis of an arrest. Nevertheless, an individual can be terminated if there is a belief the individual is a threat to others or does not present the employer in a positive light. So long as the termination is not effectuated on an arrest alone, it should be legal.
Even though an Illinois employer has the right to terminate on the basis of political affiliation and political speech, the Illinois employer must be careful regarding what is collected and contained in the employee’s employment record regarding political activities. Under Section 9 of the Illinois Records Keeping Act, the collection and maintenance of such information would be improper:
An employer shall not gather or keep a record of an employee's associations, political activities, publications, communications or nonemployment activities, unless the employee submits the information in writing or authorizes the employer in writing to keep or gather the information. This prohibition shall not apply to (i) activities or associations with individuals or groups involved in the physical, sexual, or other exploitation of a minor or (ii) the activities that occur on the employer's premises or during the employee's working hours with that employer which interfere with the performance of the employee's duties or the duties of other employees or activities, regardless of when and where occurring, which constitute criminal conduct or may reasonably be expected to harm the employer's property, operations or business, or could by the employee's action cause the employer financial liability. A record which is kept by the employer as permitted under this Section shall be part of the personnel record.
Therefore, information contained in the personnel file regarding any disciplinary action, including termination decisions and termination letters, must be carefully worded to avoid reference to the “political activities” unless it falls within the limited exceptions set forth in the law above.
If you have any questions regarding your actions as an employer, please contact Kristin Tauras at McKenna Storer. Her email address is firstname.lastname@example.org.
McKenna Storer has been serving Cook County and the collar counties for more than 66 years. We are open and available for consultations at both our Chicago and Woodstock locations. Please follow us on or our LinkedIn, Twitter or Facebook pages.