Can you be fired because of a political bumper sticker on your car?  Can you be fired for drinking a few beers after work because your boss thinks drinking is a sin?  Can you be fired because your employer thinks you are too fat?

To put it bluntly, you bet your ass you can!

In fact, an employer can refuse to hire you based on  psychological tests, required by 40 percent of employers nationwide, which include questions about your sex life, religious beliefs, intimate feeling about family member and even your bathroom habits.

I thought I was fairly educated when it comes to my rights as an American but I've recently learned of my vast ignorance on this subject.

America is thought of as the country that practically invented human rights and we enjoy freedoms people in many other countries can only dream about but what many of us do not know is that some of those very important freedoms disappear every morning when we go to work.

According to Lewis Maltby, former head of the ACLU's National Workplace Rights Office and founder of the National Workrights Institute, "The United States Constitution applies to the government, not to corporations. A private business, large or small, can legally ignore your freedom of speech. Where your employer is concerned, you have no such right."

In his new book, Can They Do That?: Retaking Our Fundamental Rights in the Workplace, Maltby documents many such cases as those listed above and goes on to explain that:

Freedom of speech isn't the only right that disappears in the world of work. Privacy disappears too. If the government wants to tap your phone or read your e-mail, it needs to have evidence that you are doing something illegal. In most cases, it needs a court order. But employers routinely monitor telephone calls, e-mail, Web site visits, and virtually every other type of electronic communication.

This surveillance isn't limited to business-related matters; an e-mail you send to your spouse or doctor during your lunch break is just as likely to be read. When you bring your company-issued laptop in for updating or repair, the technician will probably look at anything that appears interesting. Even the contents of your home computer are at risk. Some employers, like Johnson County Community College, in Kansas, have gotten away even with installing hidden cameras in locker rooms and bathrooms.

Under the doctrine of employment at will, your boss can fire you for any reason, or no reason at all. Some employers use this power to control the private lives of their employees. Best Lock Company in Indiana fires workers for social drinking because its president believes drinking alcohol is a sin. Other companies, looking to curtail medical expenses, forbid employees from smoking in their own homes or engaging in risky hobbies like skiing.

I agree with Maltby, in his interview with NPR, that employers need to be able to make business decisions the way they think best when it comes to employee performance and the like but as he points out "it’s not a business decision when your boss tells you that you have to sleep with him to keep your job or to take the bumper sticker off your car or change your religion to keep your job. That’s not a legitimate business decision. That’s just abusing the power of the paycheck."

All this will probably come as no surprise to some of you who are smarter or more informed than I am; however, if like me, you thought your freedom of speech was protected by the First Amendment in all walks of life, you might want obtain a copy of this book and discover the debts of your ignorance. I know I’ll be checking to see if the library has a copy tomorrow.



Discussion of this blog from facebook:

Joy:

Of course you can be fired for any pesky, silly, petty thing your boss or co-workers want you fired for; they'll just find some other legal excuse to use instead of what really motivates them - prejudice.

Bob:

This no news to guys like us, is it TPO? This is why we continue to work to protect the Constitution and the freedoms it struggles to preserve.

TPO:

Some of this is news to me. I've always known I could be fired for just about anything but I didn't know I would have no legal basis for challenging these type of firings in court.

Jeff:

"Your" job belongs to your employer. You have the job skills. The employer has the jobs. If the employer can make a profit by buying your job skills to perform his job then you get a paycheck.

Bob:

Basically: What Jeff says.

TPO:

Like I said in the blog Jeff, I agree that employers need to be able to make business decisions the way they think best when it comes to employee performance and the like but "it not a business decision when your boss tells you that you have to sleep with him to keep your job or to take the bumper sticker off your car or change your religion to keep your job. That’s not a legitimate business decision."

As an employer, do you think you should have the right to fire someone because they don't believe in the same sky daddy as you do?

Jeff:

OK I am in retail...I depend on my customers to keep me in business...so basically my customers are my boss, as in they can choose not to buy my services and products. I would never project an imagine in my community that would give my customers (my bosses) a negative perception of me or to in anyway discourage them from doing business with me. You would never expect my customers to be required by law to keep me in business even if they are offended by my views or beliefs. As someone who has to deal with employees, trust me when i terminate someone all my i's are dotted and my t's crossed. I have been in this business 18 years and no one’s religion or lack thereof has ever been an issue. The work place is not the place to promote a religion or ideology...especially if it is in opposition to the beliefs of the person or company that owns that job.

TPO:

I don't disagree with you there but let me make the question more clear. As an employer, do you think you or any other employer should have the right to fire an employee because you discovered they did not share a specific religious belief?

Now just to be clear, I'm not talking about an employee wearing a symbol of another religious belief to work or wearing a garment proclaiming their lack of belief.

Let’s say an employer like yourself invites one of their bag-boys or checkout clerks to attend their church and said employee politely declines saying they do not share your belief in a god. Do you think the employer should have the right to fire said employee?

Jeff:

should they have the right.....yes, would or should they do that of course not, if I were wanting to extend my faith or religious convictions to an employee firing them would not make any sense. I have had numerous customers invite me to their Church over the years, not being a regular church goer I usually smile and tell them "maybe one Sunday I'll get a chance to”, I am sure I probably have been fired by more than a few of these customers over the years and they had every right to do so....even if i feel it’s not really right. You could also think of this in reverse...let say you had a job skill i wanted to pay for, should you not have the right to decline employment based on the employers beliefs or lack of belief?

TPO:

Well I think an employee should have a legal basis to sue you and or any employer who fired them on that basis. It's basically a legal form of discrimination. You can't fire a black employee because of his race, and rightfully so. Also, no amount of customer complaints or dissatisfaction with the fact that you employee a black person can justify you firing them.

The same laws should protect citizens in the workplace that protect them under the constitution. A human being should not be able to be legally discriminated against based on their personal beliefs or lack thereof, their personal sexual preference, or their political ideology; providing they do not infringe on the same rights of the employer.

Jeff:

OK let’s say you hire a guy to do your landscaping, you are well pleased with the job he does and he is polite and a likable guy, then at some point you find out he is member of the Klan....do you have the right to fire him based on your not agreeing with his racist views...even though he do not display this views openly and they in no way have .affected the manner in which he has done his job? I would want the right to fire him, but you cannot have it both ways. I think the landscaper has a right to be a racist....and I have the right not do business with him.

Jeff:

I am no legal expert but there are some laws concerning a "hostile work environment" that may give some grounds to litigate in the event of a perceived wrongful termination.

TPO:

No, I don't think I should have the right to fire the landscaper if he is in the middle of a job I have hire him for as long as he is not guilty of any crimes towards other human beings.

Bob:

Great conversation, guys. I've been on both sides of this, and I don't think there is a clear answer. At some point, legislation could be said to infringe upon a person's right to employ who he/she wishes. If I am hiring for a position that requires an ability to discern fact from non-fact, should I be forced to give equal consideration to a person who believes in astrology or fairies? While that is personal to some extent, it would certainly impact the ability of my business to serve the community and achieve its goals.

One dividing line for me is the difference between a person-employer and a corporation-employer (this is where I have a problem with the recent Supreme Court ruling). Corporations are not people, and should be held to stricter standards than real people, who should have more freedom and rights.

TPO:

There may be grounds to litigate in the event of a perceived wrongful termination but I'm no lawyer so I don't know. As I said in the blog, I thought I was fairly educated when it comes to my rights as an American but now I am aware of my vast ignorance on this subject.

TPO:

Bob, if you are hiring for a position that requires an ability to discern fact from non-fact you have no obligation to hire someone who openly tells you they believe in astrology or fairies because they would obviously not fit the job description. The real question is, should you as an employer have the right to require a prospective employee to tell you whether they believe in astrology and fairies before hiring them. I personally don't think an employer should legally be able to ask prospective employees questions about their sex life, religious beliefs or their bathroom habits.

Bob:

It's complicated stuff, that's for sure. I have always been a believer that you can teach skills, but not ethics, but how do you hire for ethics without getting into personal beliefs? Balancing freedoms and rights is tricky.

Jeff:

Tim I think I have every right to terminate the landscaper...as the employer I own the job, and unless I have some binding contract with the landscaper i have no obligation to him. Not firing the landscaper would reflect negatively on me....think of it if i did not fire the landscaper and i decided one day to run for public office, I’d be the candidate with ties to the Klan....right or wrong that’s the reality and Bob is right it’s a very tricky balance.

TPO

Good point! Let me rephrase my earlier comment: I don't think I should have the right to fire the landscaper if I have a binding contract with said contractor but even if I do have a contract, I should not be forced to consider said contractor for future jobs.

Janie:

I enjoyed all that you guys had to say on this issue. I would not fire someone because their beliefs offended me but I would expect employees to behave in a professional manner, which includes being somewhat bland and non-controversial around customers (unless my business is maybe an S & M shop). Save your off-color humor and offensive views for FB like I do!

Jeff:

I remember a guy we did not keep on after finding out he was a convicted sex offender, of course I guess that’s like comparing apples to oranges in some ways but some would argue that sex offenders have a right to work and they should work but obviously not with the public or where they would make cliets,customers or fellow employees uncomfortable. The grounds for letting him go was based his dishonesty in filling his job app, as we would have never hired him.

Janie:

Interesting example. Some would say that if the time has been served the punishment has been fulfilled. I think it would depend on the particulars.