So – can an employee be fired for supporting perfectly legitimate organizations on her personal time?
I represent a nice young woman who it appears, was fired from a large big box store on the basis of race. That’s an easy one.
But it also appears she was fired for her support of legitimate organizations through various well-recognized social media platforms – while away from the office. The organizations were devoted to increasing LBGT representation in various industries. My client felt that her former employer didn’t want to be associated in any way with those organizations. And she is probably right, in that her supervisor told her that the company “didn’t want to be associated in any way with those organizations.” So I think she is on pretty solid ground here.
My first thought was the termination would likely be covered by the Illinois Human Rights Act[IHRA]. But while the parameters of the IHRA are broad, I’m not sure the IHRA covers this type of behavior.
Then I stumbled across the Illinois Right to Privacy in the Workplace Act, 820 ILCS 55/5, et seq., which just became law this year. Under the Right to Privacy Act, it is unlawful for an employer to discharge any individual because that individual uses lawful products[such as social media platforms] off-premises and during non-working hours. There are no reported Illinois Appellate decisions clarifying the breadth of the Right to Privacy Act, but my client’s situation looks to fall squarely under the Act’s protection.
Unfortunately, enforcement of Act is a bit cumbersome – affected employees have to file complaints with the Department of Labor. The Department then investigates, and if warranted, tries to resolve the matter. If the complaint is not resolved and the Department determines a violation did occur, the Department can sue in the Circuit Court to enforce the Act where monetary damages can be assessed. The best case scenario would be one where the employee can sue directly under the Act, for compensatory damages. But the Act doesn’t go that – yet. Hopefully it will in the future.