Fancy Dress at Fancy Law Firms? You’re Fired!

4 Apr

Workplace tyranny: not just at the low end of the service sector but also in a fancy law firm.

On March 16, at least 14 employees of the Elizabeth R. Wellborn law firm, located in Deerfield Beach, Florida, wore orange shirts to work. For this style choice, they were marched into a conference room and summarily fired. Wellborn’s husband declared that the shirts were a protest against working conditions at the 275-worker law firm, and that management would not stand for such behavior. (Early reporting claimed the workers’ dress merely signified a way to easily organize a happy hour outing, although it later came out that while that was true for some, others were dressed in the color of prison uniforms to protest draconian new work rules.)

Aren’t such tyrannical, arbitrary and callous acts illegal? Can management just throw you out on your ear, upending your life and endangering your ability to support yourself, for wearing the wrong shirt? Freedom of speech, freedom of expression, right?

Wrong.

The First Amendment and many of the Constitution’s other protections only extend to the government, not to private employers. Freedom of speech and expression are not protected in the private-sector, nonunion workplace. You could be fired for, say, wearing a pin advocating a particular political party. You could also be fired for sporting a smiley face pin.

“People assume they have a lot more protection at work than they actually do,” says Judith M. Conti, federal advocacy coordinator for the National Employment Law Center (NELP). “People also assume they have some right to be treated decently, and fairly, and respectfully at the workplace. They have the right to freedom from discrimination based on certain immutable characteristics like sex, race and age, but as long as treatment at work isn’t related to one of those characteristics you can be treated badly with no legal recourse. It’s kind of a free-for-all.”

Jake Blumgart at Alternet has the whole story here. (h/t Keven Fathi)

11 Responses to “Fancy Dress at Fancy Law Firms? You’re Fired!”

  1. Expat April 4, 2012 at 8:40 am #

    Let’s not forget that the idea that the Bill of Rights only applies to government entities is an interpretatation of the Constitution by unelected justices who arrogated to themselves the power to decide what the Constitution means, albeit a long time ago. Other countries get along perfectly well without a corporation-financed judicial veto.

  2. Vance Maverick April 4, 2012 at 10:19 am #

    While the firm acted wrongly, it’s not at all clear that the justification should be found in the First Amendment — liberal though I am, I still find that text hard to read as a restraint on any actor but the government. Wearing my idealist hat, I can imagine an argument based on Article 19 of the Universal Declaration of Human Rights — but that hasn’t been adopted as law here. More realistically, we should look to explicit workplace law, the NLRB, etc., though obviously conditions are adverse there too.

    • Corey Robin April 4, 2012 at 11:36 am #

      Though we should also point out that the notion that the 1st Amendment even applies generically to “the government,” i.e., national, state, and local — rather than to Congress, which is what it explicitly states, or to the federal government — is itself a product of constitutional construction and long struggle (the incorporation doctrine coming out of the Civil War and Reconstruction, as well as the political arguments around free speech and communism, and other factors as well). And also, of course, many in the labor movement originally sought to ground a lot of their basic rights claims in the 1st Amendment rather than the commerce clause, which is where it wound up. And let’s not forget that in his concurring opinion in Heart of Atlanta Motel v. US Justice Douglass made the point that he’d much prefer our basic notions of civil rights — including the right to travel and eat at desegregated establishments, which entails a corresponding restriction on private actors — be grounded in the 14th Amendment rather than the commerce clause. If one takes seriously the privileges and immunities clause of that amendment — which some originalists actually do (or claim they do); it was gutted by the Slaughterhouse Cases — one could make a strong case for applying the privileges and immunities of citizenship, which include freedom of speech, to private institutions in the same way that the Court applied the equal protection clause to private citizens with the Civil Rights Act. Anyway, this is all academic, of course, in both senses of the word, but worth noting nonetheless.

      • David Kaib April 4, 2012 at 12:29 pm #

        All true. That said,the Supreme Court has recognized, in Sullivan, “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” which is inconsistent with the idea that an employer can fire you over your speech. And I’m certainly convinced by the larger idea that tyranny in the workplace is tyranny. I doubt very much that most people agree that you should be able to be fired without cause, despite the fact, outside of various civil rights protections, that is the general rule.

  3. Nik Barry-Shaw April 5, 2012 at 12:54 am #

    “Smithers, who is that man in the pink shirt?”

  4. Fashion Union May 20, 2013 at 11:57 am #

    So that is freedom for the rich but not the worker, why does that not suprise me ?

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