Can Illinois employers fire employees for their political speech or affiliations? The events of the January 6, 2021 Capitol riots along with the riots and protests across the country throughout the summer of 2020 have led many employers to ask similar questions. And as protests become more commonplace and political debates run rampant on social media, employers and employees alike will be seeking answers to this question more and more frequently as time passes.
As with most questions in employment law, the answer depends on the circumstances. Generally speaking, Illinois, as an “at will” state, is more likely to permit a termination over political views than other more worker-rights-focused states such as California. Being an “at will” state means that an employer can fire its employees for any reason that is not prohibited by law or against public policy. Despite having one of the most liberal human rights acts of all the states, however, the Illinois Human Rights Act is silent when it comes to private employer discrimination based on political party affiliation and political speech. The Illinois Human Rights Act prohibits discrimination based on a specific protected trait or class including race, color, religion, sex (including sexual harassment), citizenship status, familial status, national origin, ancestry, age (40 and over), order of protection status, marital status, sexual orientation (including gender-related identity), physical or mental disability, pregnancy, military status or unfavorable discharge from military service, and, in certain circumstances, arrest record. Notably absent though is political affiliation or speech.
Public employees have limited protection in that they cannot be terminated in retaliation for exercising their First Amendment rights to free speech and assembly. The reason for this is due to the nature of the employer. Public employers, as arms of the government, are subject to the First Amendment and generally cannot abridge freedom of speech by punishing workers for engaging in protected First Amendment activity, including political activities. For private employers in Illinois, there is no federal proscription against discrimination based on political views just as there is no similar proscription under state law.
Many assume that employees enjoy First Amendment rights at the workplace. The First Amendment only extends to government action. Private employers are not the government, though the line can be blurred when a private employer acts as a government contractor. The right to free speech does not protect an individual from being fired by a non-governmental employer for what they say.
Even though the law is pro-employer when it comes to terminating employees for his or her political views, an employer must be careful when considering terminating an employee based on party affiliation or political speech. This is because state and federal laws do prohibit private employers from terminating employees for engaging in certain types of conduct, some of which is largely viewed as political or may be intrinsically linked to party affiliation. For instance, Illinois law prohibits employers from attempting to coerce an employee’s vote or for discriminating against an employee for voting. Thus, firing an employee who expresses an intent to vote for conservative or liberal candidates can be unlawful even though the employer may consider the termination to be due to the employee’s political views as reflected by the candidates the employee supports.
Additionally, the nature of the political speech or conduct makes a difference. Take the Capitol riots as an example. Certain individuals who participated in the riots were arrested. Illinois law prohibits discrimination based on an employee’s arrest record. This means an employee cannot be fired merely for the fact that they had been arrested. However, an employer can fire that employee based on the activities that led to the arrest. Many may ask what the difference between the two is. The distinction is that the fact of the arrest cannot be what sways the employer’s decision. In other words, if the employer would have terminated the employee his or her actions alone, then it is not required to continue to employ the individual just because he or she was arrested.
Even though an Illinois employer has the right to terminate an employee on the basis of political affiliation and political speech, it must be careful regarding what is collected and contained in the employee’s employment record regarding political activities. Under the Illinois Records Keeping Act, employers are also prohibited from gathering or keeping a record of employee’s associations, political activities and publications in the employee’s personnel file.
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