Is It Legal To Fire Someone Over Posts About Palestinians? Lawyers Weigh In.

On Oct. 13, Michael Eisen shared a satirical article from The Onion on X (formerly Twitter). The headline said, “Dying Gazans Criticized for Not Using Last Words to Condemn Hamas.” Eisen then re-shared the satirical article and added: “The Onion speaks with more courage, insight and moral clarity than the leaders of every academic institution put together. I wish there were a @TheOnion university.”

Eisen, who is Jewish and has family in Israel, was the editor-in-chief of eLife, a nonprofit science journal, at the time of his post. He said his post was not an off-the-cuff comment but an informed political opinion that was shaped by a life in which the Israeli-Palestinian conflict was “topic number-one” that his family talked about.

For Eisen, it was a personal reaction to “the kind of impossible bind the Palestinian civilians were put into, of people being more concerned about them condemning Hamas than they were about them dying,” he said.

Eisen said his intended audience for his post was academic institutions that make statements on global events that sound “like chatGPT” and that do not acknowledge everyone’s humanity.

Eisen went to bed after posting and woke up to “all hell breaking loose” as scientists online called for his resignation and people accused him of being antisemitic.

Eisen said he was asked to explain his post in a board meeting a week later and was later asked to resign by a board member. He refused, then got fired. At least seven editors have since quit in solidarity.

Since the Oct. 7 terrorist attacks on Israel by Hamas militants and Israel’s escalating war against Hamas in the Gaza Strip, sharing views in a social media post have become fraught for employees who must weigh their personal beliefs with professional consequences.

The eLife journal declined to comment about discussions Eisen had with the board and his firing. It instead referred HuffPost to its public statement: “Mike has been given clear feedback from the board that his approach to leadership, communication and social media has at key times been detrimental to the cohesion of the community we are trying to build and hence to eLife’s mission.”

Eisen questions the validity of this vague reasoning. “They could have said, ‘It’s not appropriate to issue support for Palestine or to use satire to do it’ or something specific,” he said. “They fired me because I was detrimental to cohesion of the community. And so what does that mean? It means that anybody who views anything I say as something that they don’t like, if they make a ruckus about it, now the cohesion of the community has been questioned.”

Posting about the Israel-Hamas war has had far-reaching job consequences across industries. An art magazine editor-in-chief was fired for publishing an open letter in the magazine that supported Palestinian liberation and criticized “the institutional silence around the ongoing humanitarian crisis that 2.3 million Palestinians are facing.” A Hollywood talent agent was made to step down from a leadership role on an internal board after sharing Instagram posts that called Israel’s attack on Gaza a “genocide.” Law students have had their job offers rescinded after being linked to statements that blamed Israel for the ongoing violence with Hamas.

This kind of professional backlash is not new. Palestine Legal, an advocacy group that represents activists who speak up for the Palestinians, said it has responded to 1,707 incidents from 2014 to 2020 that target speech supportive of Palestinian rights, including disciplinary investigations, censorship and accusations of antisemitism. But the number of job reprisals and disciplinary actions has reached a heightened tenor.

“I’ve been explaining to people that my existence doesn’t mean that I hate Jewish people. I have Jewish friends that I love very deeply ― I’ve been explaining that to people for 30 years,” said Amanda Ghannam, a civil rights attorney in Detroit who is Palestinian American. But she said the uptick of backlash she has seen people face for advocating on behalf of Palestinian rights “is like nothing I’ve ever seen in my life, let alone my career as an employment and civil rights attorney.”

If your employer doesn’t like what you say, you can be easily fired as an at-will employee.

Ghannam said people can mistakenly believe that free speech rights under the First Amendment apply to private employment, but they do not.

If you work for a private employer as an at-will employee, you can be fired for any reason unless you have a collective bargaining agreement that says otherwise or you can prove that the employer’s actions were discriminatory.

Generally, private employers are free to rescind any offer if you engage in speech that is contrary to the employer’s values.

“The law does not currently distinguish between ‘right’ or ‘wrong’ here: If the employer is offended, then they usually have sufficient justification to rescind the offer,” said California-based employment lawyer Ryan Stygar.

Re-sharing social media posts can count as a reason to be fired even if you didn’t write the original post and never said anything out loud. “Employees should presume that anything they share online, even if [it is] not their own original words, can be seen as an endorsement of that content, and you can expect to see consequences flow as if it were your own words,” Stygar said.

A tech professional in New York City, who asked to stay anonymous because they feared job reprisal, said they have seen co-workers “like” LinkedIn posts supportive of Israel and Zionism, but this tech worker is afraid to “like” posts that could be construed as supportive of Palestinian rights, such as ones that call what is happening in Gaza a “genocide.” (The United Nations defines genocide as trying to destroy a group by killing its members, inflicting serious physical or mental harm, imposing harsh living conditions, preventing births or taking children away.)

“There’s a very clear double standard of Palestinian lives being too political, too polarizing,” the tech worker said. They are stopping themselves from liking and posting because they are the most junior position on their team.

“I’m just so mad that I’m scared to speak out because I don’t want to lose my job,” the tech employee said.

They have already faced consequences before for sharing their views at work. A Slack message in a work chat on the current rise of Islamophobia was construed as insensitive by a manager because it did not also call out the rise of antisemitism.

That’s why, in some cases, being a job seeker or freelancer can be more freeing than having to contort yourself to fit your employer’s perspective. Farida Habeeb, an internal communications professional who also does work on diversity, equity and inclusion initiatives, has been openly posting on LinkedIn in support of the safety and freedom of Palestinians as she hunts for full-time work.

“My mother was concerned that me speaking up might jeopardize potential job offers,” Habeeb said. “But I told her … that I don’t want to work for an employer who sees me speaking up about this issue as a problem.”

Habeeb said she’s always been involved with Palestinian activism as a Muslim person who is part Arab, but after being laid off from her job in August, she became more vocal. As a freelancer, Habeeb said, she is lucky that her main client is Jewish who is “open to debate, open to discussion and very supportive of me speaking out.”

But Habeeb acknowledged that if she were still employed by her previous company, “I don’t think I would even say anything publicly.”

“I very much do not judge any other job seeker for whether they are or are not speaking out about it,” Habeeb said. “I think everybody has to assess their own level of risk, especially if they come from a historically excluded background.”

Employees can fight back if they can prove an employer’s actions were discriminatory.

“If you are in private employment, you basically only have the right not to be discriminated against or retaliated against for some sort of protected activity,” Ghannam said.

And depending on where you live, participating in political activities related to the Israel-Hamas war in your off-time would be protected in certain states and cities. Stygar noted that the California labor code prohibits employers from forbidding or preventing employees from engaging with or participating in politics, as one example.

“Therefore, a letter to your state senator urging them to take a certain position in the conflict may be protected under this law,” Stygar said.

And there are federal protections, too. Under the Civil Rights Act of 1964, workers are protected from discrimination based on race, religion, skin color, sex and national origin. That’s why if you are an employee of Middle Eastern descent or from a Muslim religious background who is being punished at work for speaking up about issues related to your identity, you could potentially have a stronger legal case that you are being discriminated against, Ghannam said.

“We’re seeing a rise in this racist Islamophobic rhetoric about supporting terrorism,” Ghannam said. “If that’s something where co-workers are harassing you, you’ve got to report that. You have the right to not have that happen in the workplace as well.”

But “if it’s not linked to that person’s identity or to any discriminatory conduct, that person is going to have a tough time arguing that they were wrongfully terminated,” she added. She gave the example of a case in which a white person got investigated and suspended for wearing a “Free Palestine” T-shirt to work.

Because that message was not linked that to that person’s identity, “you don’t have an argument that that person is being discriminated against because of who they are as a person,” Ghannam said.

Robert Baldwin III, founder and managing attorney at Virtue Law Group, said that company statements explaining terminations are strategically brief because the more information an employer shares, the more it can reveal discriminatory behavior. “If you’re picking a side between two races, two nations, two national origins, then we start talking about discrimination,” he said.

But there is also a strength in numbers, should you choose to call out your company’s response to the Israel-Hamas war. Ghannam gave the example of a group of workers she recently advised that noticed how their employer publicly offered support to Jewish employees who were being affected by the events of the past few weeks but did not offer any support to Palestinian or other Arab employees.

“They wrote sort of an open letter describing how they felt overlooked and unsupported, and treated differently than their colleagues because of their background and ethnicity. And even though they weren’t in a union, they got over 80 people to sign this open letter explaining how they felt, and the company was receptive,” Ghannam said. “If … the employer knows that they’re going to have to deal with all 80 of you, then you’re building a lot more collective power to make sure that your workplace is equitable.”

And if you are speaking as an individual, ask yourself first: “Is this statement really something that I want to risk my job over? And sometimes the answer is yes,” Baldwin said.

Eisen, who is also a tenured professor at the University of California, Berkeley, said being the editor-in-chief at eLife for more than four years was important to him but not his only job. Eisen said he has no regrets about what he posted. “I do feel more sad and depressed for the state of institutions and our academic community and the world than I do a sense of personal unfairness.”

In his view, the firings related to supporting the Palestinians are not typically because a company wants to stake out a particular political position but because the employer wants to avoid controversy and that concern for Palestinian lives is seen as “intrinsically controversial.”

“In some ways, that’s worse than if the organization says, ‘Hey, this is our political view. If you differ from it, that’s bad.’ … I don’t like it, but, like, at least that’s a navigable position for employees,” Eisen said. “That’s the real problem to me. It’s creating a climate where just the only safe thing to do is nothing.”