The events that took place on January 6, 2021, at the U.S. Capitol were jarring to many. Some of those made uncomfortable by what they saw were employers, who subsequently took action by firing employees and severing ties with contractors who were depicted participating in the event, according to news sources like CNN. This has caused many to wonder, can a New Jersey employer or business do that? The answer, as is the case with so many legal issues, is… it depends. For these reasons, it is best to get customized answers based on your specific situation from an experienced New Jersey employment attorney.
Perhaps the first thing to know is that there are a lot of situations where this type of employment action is legally permissible in New Jersey. New Jersey does not have a law that makes participants in political activity or a political group a protected class for purposes of discrimination law. So, if your job is something that fits within the law’s definition of “at-will employment” (which is most jobs), then, yes, chances are high that your employer can fire you.
There are, however, some important situations where that’s not the case. First, if your employment is subject to a collective bargaining agreement (CBA), then you’re not an at-will employee. Everyone from teachers to dock workers, who are members of unions, fit into this category. For a unionized worker, the answer to whether or not your employer can fire you for your political activities is contained within your union’s CBA with that employer. Some may allow this basis for termination, but many CBAs likely do not allow it. Your employer’s firing you anyway could constitute a violation of the CBA.
Even if you are an at-will employee, there’s still the potential that your termination for participation in a political activity could be the basis for a winning discrimination case in New Jersey.
The importance of ‘disparate impact’ and ‘disparate treatment’
When it comes to discrimination law in this state, two types of forbidden practices are “disparate impact” discrimination and “disparate treatment” discrimination. The first refers to employer policies or practices that tend to impose disproportionate harm on people of one or more protected groups. So if, for example, your employer decides it is firing everyone who participated in a recent “Women’s March,” then that termination could be the foundation of a disparate impact discrimination case if that policy inflicted disproportionate harm on people based on their gender. The same goes for your employer punishing you for participating in a protest for racial justice (race-based disproportionate impact discrimination,) a demonstration advocating for trans rights (gender identity disproportionate impact discrimination) or a Pride parade (sexual orientation disproportionate impact discrimination.)
Disproportionate treatment is more specific to you. Say, for example, you have several white colleagues who participated in protests opposing the removal of certain monuments, and none of them received discipline at work for their actions. You, a Black worker, participated in a local Black Lives Matter demonstration and, based on pictures showing your attendance, your employer fired you. That would possibly be an example of race discrimination based on disparate treatment, as your employer has treated you, a member of a protected group, more adversely than it did similarly situated workers outside that protected group.
Succeeding in these kinds of cases requires obtaining all the evidence necessary, compiling it into a viable case and then presenting that case in a powerful and persuasive way. In other words, you need an experienced advocate working for you. Look to the knowledgeable workplace discrimination attorneys at Phillips & Associates to be that sort of reliable and effective advocate for you. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.