Fired for Opposing Gay Marriage

Agape Press has a report about a man in Virginia who was fired from his job at a Cargill plant for having a sign on his vehicle aupporting Virginia's anti-gay marriage amendment.

Luis Padilla was reportedly terminated from his employment at a Cargill Foods plant in Harrisonburg because of a written message on the rear window of his pickup truck that read: "Please, vote for marriage on Nov. 7." That is the day when voters in Virginia will be considering a proposed amendment to the state constitution protecting traditional marriage...

The Family Foundation of Virginia sent a letter to Cargill, calling for Padilla's reinstatement. However, the large private company has denied the request, saying "Cargill is not required to allow Mr. Padilla to impose his beliefs on his co-workers." Victoria Cobb, executive director of the Family Foundation, says Cargill is engaging in viewpoint discrimination.

Let me say this: I think it's outrageous for the company to fire the man for merely expressing an opinion in this manner. I think he's wrong, of course, but I do not think anyone should lose their job over the expression of an opinion on a political issue, especially one not even made while on the job. But I want to point out a basic hypocrisy at work here when groups like the Family Foundation of Virginia complain about such discrimination: these are the same groups that throw a temper tantrum at the suggestion that anti-discrimination laws should cover sexual orientation.

Their position, then, is that companies should be able to fire someone solely for being gay, which has nothing at all to do with whether they can do the job. And their argument is that prohibiting discrimination of this type amounts to "special rights" and it's different from racial or gender discrimination because it's a "mutable characteristic" based on "voluntary behavior." Yet here they are arguing for a ban on discrimination over something that is entirely mutable and voluntary, the expression of an opinion. The hypocrisy is quite clear.

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"reportedly" says a lot too.

I somehow doubt the termination was based solely on a handwritten sign in a car window.

Or that the termination was simply "you're fired" without a longer process being involved whereas the man in question was confronted in some way and asked politely to stop a behavior that was in specific violation of a corporate policy.

I've heard secondhand about employees in my corporation being terminated for repeatedly abusing the email system in sending out religious material corporate-wide. (And can attest to the first one appearing in my mailbox.) Said termination occuring after warnings following the first time it happened along with a corporate-wide email reminding all employees about the policies in place regarding use.

Obviously different from what was reported, but I still doubt that the report you mentioned was completely accurate in supplying the full details. And given the paranoia in the corporate workplace over harassment I would believe that it is very easy to cross the line.

I'm not sure I understand your position regarding whether an employer should be allowed to choose its employees. Are you saying that if someone supports Political Cause A an employer should not be able to discriminate against that person if the person never expresses his opinion at work (or otherwise disupts te working environment)?

It would seem that I should be able to hire qualified people that are only, say, registered Democrats. I do have a right to associate with whomever I want, at least to the extent that I don't discriminate on the basis of race, color, creed, national origin, gender disability (to an extent) or sexual orientation (to an extent).

Now, it may be that there are plenty of qualified Green Party members that would be glad to do the job. And it would not make good business sense to disregard qualified candidates.

But don't I have a right to be stupid, don't I?

By David C. Brayton (not verified) on 21 Oct 2006 #permalink

Ed,

While I agree with you that Cargill is completely unjustified if this individual was fired for displaying a political viewpoint on a bumper sticker, there is potentially a different issue at work here. If the individual in question was actively advocating his arguably discriminatory viewpoint in the workplace, despite requests to cease, he could have been creating a "hostile workplace environment". A "hostile work environment" is harassment, speech or conduct based on race, religion, sex, national origin, age, disability, veteran status, or, in some jurisdictions, sexual orientation, political affiliation, citizenship status, marital status, or personal appearance that is "severe or pervasive" enough to create a "hostile or abusive work environment", for the plaintiff and for a reasonable person. Any action by Mr. Padilla of this nature would require Cargill management to act and may be grounds for dismissal in most companies. To culminate in dismissal, however, several conditions would have needed to have been met:

1) He would have had to actively advocate discrimination against others based on sexual orientation. The bumper sticker doesn't make it there, but advocating the opinions esposed by it within the workplace might. You're absolutely correct that action by the Cargill management based only on the bumper sticker would be a definite infringement of Mr. Padilla's First Amendment rights, which is why I suspect there was more to this story than dismissal over a bumper sticker.
2) Cargill management would have needed to undertake warnings or other disciplinary action prior to termination, and the behavior would have had to continue despite these warnings. The management would be obligated to undertake immediate investigation if other employees were complaining about Mr. Padilla's actions within the workplace, which is exactly what happened according to the news reports (ie, other employees were complaining about Mr. Padilla's actions). The gray area occurs when these actions occur outside the workplace. However, from reading the news acticles on this incident, it appears that Mr. Padilla was asked more than once to remove the sign, and refused. Moreover, as a member of the Human Resources department, Mr. Padilla was undoubted well informed about the Cargill policies regarding creation of a "hostile workplace environment" and chose to ignore them.

The news report is here: http://www.dnronline.com/news_details.php?AID=6909&CHID=1

Companies and managers are often caught between a rock and a hard place in this regard. In Faragher vs. City of Boca Raton (No. 97-282), the Supreme Court ruled that companies may be held liable if supervisors sexually harass workers even if the employees do not report the harassment. In Ellerth vs. Burlington Industries (No. 97-569), the Supreme Court ruled that companies may be held liable even if the employees suffered no tangible loss. There have also been cases in which a manager was named as codefendant with the company for not preventing harassing behavior within his or her staff or for not taking appropriate action after a report was made. Thus, a clear policy is essential and consistent treatment of all harrassment is a key element of addressing these issues.

In Mr. Padilla's case, he was a member of the HR department and as such could be construed as a representative of the company (at least internally to other employees). Moreover, as an HR worker, he should understand the implications and ramifications of his actions. Also, Mr. Padilla was warned about his actions and exhibited insubordination (the stated reason for termination) by ignoring these warnings. At the very least, he showed questionable judgment as an HR employee by his actions in this case.

Here's an interesting link to the laws on workplace harrassment: http://www.law.ucla.edu/volokh/harass/breadth.htm

As an aside, I think that Agape Press, as a conservative Christian publication, has a definite axe to grind in this reagard. The original acticles refer to the fact that Mr. Padilla's opinion was that his termination resulted from the sign on his vehicle, whereas Cargill's stance was that he was terminated for "insubordination" for attempting to circumvent the company's efforts to address a harrassment complaint against him over the self-same sign.

In any event, the law is quite clear: political speach, if it results in complaints about harrassment, is not protected in the workplace. There are loads of gray areas here, and prehaps we'd be best served in having the law clarified for both the companies and the individuals.

And yes, this issue could potentially arise over even simple "vote for X" bumper stickers, should any employee take issue with another. That is the bigggest problem, as I see it, with how current laws are written. This point is especially true when the government begins regulating based on religious concepts (as is the case in marriage regulations, when you get down to it).

"Where pure expression is involved, Title VII steers into the territory of the First Amendment. It is no use to deny or minimize this problem because, when Title VII is applied to sexual harassment claims founded solely on verbal insults, pictorial, or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech." Circuit Judge Edith Jones, writing (albeit in dictum) for a unanimous panel of the Fifth Circuit, DeAngelis v. El Paso Mun. Police Officers' Ass'n, 51 F.3d 591 (5th Cir. 1995).

RSS

The local paper includes this statement...
The disputed firing at Cargill, Marshall said, is likely to help the amendment's chances of passing. "This can only help," he said. "When people start to see the overreach of the homosexual supporters, they are going to start thinking, 'There's an agenda out there.'"

I think Kurt is on to something. There's probably much more to this incident and the "values voters" are using it to make hay.

http://www.dnronline.com/news_details.php?AID=6909&CHID=1

David,

No, you can't discriminate in hiring based on political affilation. Of course, you can refuse to hire someone for other reasons, but if you explicitly tie it back to political affiliation, sexual preference, race, religion, etc, then that is pretexting. In a ruling by the 7th Circuit Court of Appeals recently on the case of Millbrook v. IBP, Inc., the plaintiff argued that the employer's explanation for its failure to hire him was a mere pretext. However, the Court noted that the burden of proving such a motive is high, saying that 'pretext' "means a lie, specifically a phony reason for some action . . . it means something worse than a business error; 'pretext' means deceit used to cover one's tracks." So, the bar is actually set quite high for these circumstances, and it can be very difficult to prove that pretexting occured.

Of course, there are times that such discrimination is perfectly legal. Title VII expressly allows religious corporations and sectarian educational institutions to hire applicants of a particular religion. For example, a Catholic grade school could decide to hire a teacher because he is a Catholic rather than hire an applicant who is a Protestant. This exemption applies only to religion, however, the school may not discriminate in hiring teachers based on race, color, sex, national origin, age or disability. Gotta love the churches.

RSS

Kurt wrote:

"reportedly" says a lot too.

I somehow doubt the termination was based solely on a handwritten sign in a car window.

Or that the termination was simply "you're fired" without a longer process being involved whereas the man in question was confronted in some way and asked politely to stop a behavior that was in specific violation of a corporate policy.

If you read the article, you'll see that they tell a more detailed story than that. And the reason I'm figuring the story is accurate is because they actually quote the company directly as saying that they are not required to "allow him to impose his beliefs on others." If they're lying, it's a pretty bold one (though that is a possibility, this is Agape Press after all). And they do say that he initially removed the sign from the window of his truck, then decided to put it back on and parked it somewhere else, not in the employee parking lot. Which seems perfectly reasonable to me.

For me, the standards are fairly simple on what is reasonable discrimination and what is not (note I did not say legal discrimination; I am not talking here about whether what the company did was illegal, but about whether it was justified). When you're dealing with someone's expression of an opinion, we can all think of opinions one could express, or ways they could express, for which someone could justifiably be fired from a job. Someone who went around saying "I hate niggers" in an office that includes black people could justifiably be fired for doing so. Someone who spent their time proselytizing their clients or co-workers rather than doing their job could justifiably be fired for doing so. We can all imagine perfectly justifiable situations like this. But it this one of them? I don't think so. And here's how I think you reach that conclusion, with these two questions.

First, if the person had said the opposite, would it be an issue at all? In other words, if Padilla had a sign in his window saying "Support gay marriage on November 7th", would he still have been fired? If the answer is no, then that strongly suggests that what is really going on here is that someone is being fired just because someone else doesn't like his opinion. And I think the answer in this case is likely no. Second, does the expression of that opinion disrupt his ability to do his job? And again, I think the answer is no. If he went around badgering his co-workers about it, then perhaps one could make that argument. But this is the equivalent of a bumper sticker on his car. It's an expression of opinion on his own personal property, which he even went so far as to park somewhere other than the company parking lot. You're going to have to show me some disruption to his ability to do his job before I'll accept that this is justifiable discrimination.

RSS - Yes, it could be so severe as to constitute workplace harrassment, but there is no evidence to indicate that was happening. All indications, including from the local press articles (not just the Agape Press article) are that he behaved perfectly reasonably, tried to negotiate with them in good faith, but the mere fact that he had that sign on his vehicle was what they refused to allow. And as you point out, the problem with such rules in hte first place is that they are incredibly subjective and can be used simply to do away with expressions one doesn't like.

Ed,

The trigger I saw in the articles that indicate this was actionable by management was the fact that Mr. Padilla's actions resulted in a complaint by a fellow employee. Management then requested he remove the offending sign, which he did. At that point, the situation was under control.

However, when Mr. Padilla reposted the sign the next day without further addressing the issue with the Cargill management, he was definitely acting in a provocative fashion. Parking off company property, but in plain sight of the other employees (I assume, based on the fact that management saw the sign again and was forced to act) went to insubordination. As it turned out, although Mr. Padilla parked somewhere other than the employee parking lot, where he parke was still on company property. That pretty much cements the case for additional action. Was dismissal warranted? I don't think it was, but given the legal repercussions of not addressing the issue, and given the unknown of any communcations between the management and Mr. Padilla, there certainly may have been a basis for termination.

What could have been done to alieviate the situation?

1) Management could have handled the initial complaint in a more low-key fashion. However, once the request that Mr. Padilla remove the sign was made, the Cargill management had taken a stand on the issue that was pretty clear-cut. 2) If Mr. Padilla disagreed with Cargill's approach to the situation, he should have dealt with it through an internal process. Blatantly circumventing a management request, no matter how unjustified, is subordination. Plain and simple. Maybe the request to remove the sign was wrong, but reposting it simply added fuel to the firing. Then again, claiming suppression of free speach doesn't have quite the same legs on it if you still have your job. Provoking Cargill to fire him made his case seem stronger.

Would we still be discussing this if Mr. Padilla had removed the sign, then complained about this request as a suppression of his freedom of speech if he hadn't provoked his own termination? Probably not. There are some political nuances here that lead me to speculate several of the parties involved (Mr. Padilla, Agape press, local politicians) have some axes to grind. However, this doesn't reflect on whether the actions by Cargill were justified or not. Under Title VII, I think Cargill may have overreacted, but in general they were trying to stay on the safe side of the law. That is the major issue - the potential for restriction of free speech under Title VII. I don't agree that Mr. Padilla was acting in a reasonable manner, as he was informed that his sign was causing a complaint and ultimately decided to ignore the company's request aimed at addressing the issue. And yes, I am holding Mr. Padilla to a higher standard because he was an employee withing the Cargill HR department and as such should have been much more sensitive to this issue in the first place.

Would Cargill have done something similar if Mr. Padilla complained about a similar sign advocating support of gay marriage? Given their action with regards to Mr. Padilla, I suspect they would have. In any event, if they did not they would have been open to the same Title VII issues as they were with Mr. Padilla. I think any speculation in this regard is just that - speculation - and isn't useful in addressing the actual circumstances of this case.

Finally, could other political bumper stickers, etc be restricted under Title VII. I think that they could be, and therein lies the problem.

RSS

RSS--Whether the reason for the firing was a pretext is beside the point. The issue is whether an employer can refuse to hire (or fire) someone becase they hold a particular viewpoint that is irrelavant to the performance ofthe job.

The use of Republican / Democrat was a poor example because of the law on that particular issue.

Pick any other issue: ban smoking in public places; protection of the spotted owl/tiger salamander/endangered species; gambling.

Should an employer be able to not hire/fire someone who advocates the legalization of gambling? Say the employer was married to an addicted gambler who drove her family into bankruptcy.

It seems to me that, yes, she should be able to construct a workforce that also reflects her political views.

By David C. Brayton (not verified) on 21 Oct 2006 #permalink

Ed,

Correction: I agree it was reported that Mr. Padilla did try to discuss matters with Cargill management after the second incident that led to his firing. In my judgment, the Cargill management was probably too quick to terminate Mr. Padilla. However, as armchair commentators, we certainly don't know how Mr. Padilla's discussion with management immediately preceeding his termination was conducted. If Mr. Padilla was hostile and/or confrontational when he "tried to accomodate" Cargill management on the second incident, I could certainly see where that would lead to immediate termination and a quick march out the gate. Again, we just don't know the circumstances of that conversation.

Regardless, this highlights the difficulty of balancing Title VII against the First amendment.

RSS

David,

No, pretexting is illegal in hiring if it goes around the EEOC standards. However, it's really easy to find legitimate reasons not to hire someone you don't like. Something along the lines of "they don't fit into our corporate culture" works. However, if you do that to every applicant who is a Democrat, that would be pretexting. There are certain things you cannot ask in an interview with a candidate. Things like sexual preference, maritial status, racial identity, political affiliations, etc are generally off limits (with some exceptions).

RSS

Ed--people have the constitutional right to associate with whomever they want. It would seem that this right should extend into the employer / employee context.

The criteria you put forth make a lot of sense and if I were a lawyer advising an employer regarding this issue, I'd likely advocate those criteria. They make business sense and are fair.

However, if the employer was intent on saying "Gamblers need not apply" should she be able to? She does has the constuitutional right to associate with whomever she wants. The standard to infringe a constitutional right should be a bit higher than what employers ought do

By david C. Brayton (not verified) on 21 Oct 2006 #permalink

You guys are still missing the point completely. I am not talking about whether what they did was legal; I'm talking about whether what they did was justified. I am further talking about the hypocrisy of religious right groups arguing that this sort of thing should be illegal, while also arguing that discrimination against gays should not be.

As far as I'm concerned, the case should have been handled this way: when someone complained about the sign, he should have been told that they do not consider their employees' political opinions to be any of the company's concern unless they interfere with their ability to do their job. Further, that if the person making the complaint cannot handle other people having differing opinions, then perhaps he's living in the wrong country because in this country we respect the right to express one's opinions. The end. Should that be legally required? No. But that's how it should have been handled.

Well, I assume we'll find out exactly what happened when this goes to court (assuming it does).

By Andrew McClure (not verified) on 21 Oct 2006 #permalink

But that's how it should have been handled.

Hear, hear. And that's exactly how I'd feel if the bumper sticker went the other way and religious employees felt they were being "persecuted for their faith." Too bad.

And I'd even extend this stance to conversations around the water cooler, as long as they kept on topic and didn't wander off into gratuitous abuse. Atheists are long used to putting up with negative comments when they are "outed." There's a line where it turns into harrasment, but not at the level of cordial exchange of opinions (even if that opinion is "too bad you're going to burn in hell.")

Ed - yup, why is it that the mere fact somebody complains puts them in the right nd eveybody else has to kowtow? The rights of the 1st go hand in hand with the responsibility to handle your own reaction to other peoples' opinions.

On the subject of not being legally allowed to hire on the basis of political affiliation, it is well known now that the R's instructed K-street to fire their D's or lose support, and the members to only use pure R lobbyists. So they set the example. Are they also breaking the law? I think so.

By david1947 (not verified) on 21 Oct 2006 #permalink

As far as I'm concerned, the case should have been handled this way: when someone complained about the sign, he should have been told that they do not consider their employees' political opinions to be any of the company's concern unless they interfere with their ability to do their job. Further, that if the person making the complaint cannot handle other people having differing opinions, then perhaps he's living in the wrong country because in this country we respect the right to express one's opinions. The end.

Absolutely dead on, Ed. Your clarity on these topics is admirable.

By Andrew Wyatt (not verified) on 21 Oct 2006 #permalink

The Family Foundation of Virginia sent a letter to Cargill, calling for Padilla's reinstatement. However, the large private company has denied the request, saying "Cargill is not required to allow Mr. Padilla to impose his beliefs on his co-workers."

When did advocating that people vote in a particular way become tantamount to "imposing" your beliefs on others?

By Ramsey Wilson (not verified) on 21 Oct 2006 #permalink

I don't know where a lot of you live, but in most of the country you CAN fire someone for thier sexual orientation. So please stop including that in your list of reasons you can't fire someone.

Since I am gay, and with the climate that these right wingers have made, if I owned a company, I would only hire gay people. I would put that in the newspaper ads, "Must be homosexual". And I would wait for the KKKristians to say how unfair I was.

Just to let you know if all there was to it, and I don't know for sure, was a bumber sticker that said vote for the admendment, I don't think he should have been fired.

True, in much of the country sexual orientation is not part of the anti-discrimination laws. And every time someone tries to add that category, the religious right throws a fit and says that because being gay is based on behavior and is a mutable characteristic (they're wrong, of course), it shouldn't be covered. Yet they think that behavior like this should be covered, which clearly is mutable as well. And they think religion should be covered, which is even more mutable. It's that inconsistency that I am pointing out.

Ed, I agree with your advice to Cargill. I am less sure that the apparent inconsistency you are highlighting is an invalid legal distinction. Freedom of speech and religious expression are covered by the First Amendment. The issue of immutability arises in equal protection claims brought under the Fourteenth Amendment, not the First Amendment, right? Or does immutability sometimes arise in that context, too?

By Ramsey Wilson (not verified) on 21 Oct 2006 #permalink

Ramsey said -
Freedom of speech and religious expression are covered by the First Amendment.

Yes. But that does not give them some magic right to not be discriminated against, the law does that. It is inconsistant to demand that they have protections from discrimination (which I think they should) but speak out against them for another group.

Ramsey Wilson wrote:

I am less sure that the apparent inconsistency you are highlighting is an invalid legal distinction. Freedom of speech and religious expression are covered by the First Amendment. The issue of immutability arises in equal protection claims brought under the Fourteenth Amendment, not the First Amendment, right? Or does immutability sometimes arise in that context, too?

The first amendment is irrelevant here, as it protects against government coercion, not against an employer. Actually, the 14th amendment is also irrelevant here. Anti-discrimination laws are not based on the 14th amendment, which again only governs what the government may or may not do, not what a private organization may or may not do. The inconsistent is in arguing against discrimination laws regarding sexual orientation because it's a mutable trait and based on behavior but then demanding that religion, also a mutable trait and one based on behavior, be covered under such laws. Then there's the double hypocrisy of arguing that banning discrimination against gays is a "special" right when they already have such protection for themselves based upon religion. It can't be "special" if others already have the same protection.

Ed,

I understand and agree with your point vis a vis whether or not Cargill's actions were justified. My point is simply that under Title VII, if an employee complains and especially if that employee indicates that their complaint is about something (pretty much anything) that is creating a "hostile workplace environment", then you're going to see management react if they're at all smart. Yes, most of the time they will react by whomping the problem with the proverbial sledge hammer. My point is that, considering the liability management has under Title VII, overreaction is the natural outcome.

Your recommended approach is probably how things should have been handled, in an ideal world. However, in today's business climate where management may be held personally liable, up to and including jail time for ignoring egregious offences, over reaction is more justified than half measures. It's a sad commentary on how screwed up the Title VII laws are, that they trump free speech. As you pointed out, the First Amendment only applies to government, anyway, and it's the government that's forcing businesses to squash free speech in the name of avoiding "harrassment".

Discrimination in whatever flavor is reprehensible, but everyone personally draws certain lines when it comes to beliefs. Foisting those beliefs on others, through government moderation of social interaction, that's where the problem lies.

RSS

Ed wrote:

The first amendment is irrelevant here, as it protects against government coercion, not against an employer. Actually, the 14th amendment is also irrelevant here.

You're the boss here. If you want to limit the discussion to private employers covered by Title VII and similar state laws that is your prerogative. I still genuinely wonder whether your observation has any relevance for situations involving government employers.

By Ramsey Wilson (not verified) on 21 Oct 2006 #permalink

Ramsey Wilson wrote:

You're the boss here. If you want to limit the discussion to private employers covered by Title VII and similar state laws that is your prerogative. I still genuinely wonder whether your observation has any relevance for situations involving government employers.

It has nothing to do with limiting the discussion. The issue under discussion here involved private employers, you didn't say anything about government employers. That's an entirely different issue, as government agencies obviously must comply with the first and 14th amendments, while private employers are not so required. Neither form of discrimination would be allowed if the employer was the government, even if disallowed under different constitutional provisions.

One point that seems to have been missed in the whole discussion, that is relevant to the justification, if not to the legal question. The man was not just 'an employee' but someone who worked in the Human Resources Division, that is, was, presumably, involved with hiring and firing people.
If I were a black man and saw a car drive up to a company where I was applying with a Confederate flag on it, maybe I'd be annoyed. But if that car parked in a section of the lot labeled 'reserved for the HRD,' I'd very much wonder if I should waste my time applying.
Were I a gay man, as I am, at least bisexual, I might feel the same about this sticker on the car of someone who works in this department.
And a company that tried not to discriminate might feel the same.

As far as I'm concerned, the case should have been handled this way: when someone complained about the sign, he should have been told that they do not consider their employees' political opinions to be any of the company's concern unless they interfere with their ability to do their job. Further, that if the person making the complaint cannot handle other people having differing opinions, then perhaps he's living in the wrong country because in this country we respect the right to express one's opinions. The end.

Well, good luck with that.

The last, biggest asshole will be the last guy standing. Ought to do wonders for morale.