Can an employer legally discipline or terminate an employee and/or rescind a job offer over remarks supporting the recent terrorist actions of Hamas against Israel? The short answer is yes.
Private sector employers don’t have to consider whether an individual’s statements are protected by the First Amendment to the Constitution. The First Amendment has no application in the private sector. As long as the employer is consistent, and can articulate a legitimate nondiscriminatory reason for its decision to terminate or rescind an offer (and comments incompatible with the organization’s values fall into that category), there is no law preventing the termination in Virginia. Other states have local laws that apply to after-hours activity; Virginia does not.
Public sector employers must consider the First Amendment protections. When making a decision on whether to discipline or terminate for actions or words, employers should consider whether the statement was made on a matter of public concern and as a citizen not an employee. They should also consider whether the interests of the public sector organization to run an efficient operation outweigh those First Amendment rights. Most of the time the answer is “yes,” and the employer can legally terminate or discipline without violating the First Amendment.
There are many examples of this happening.
A New York hospital swiftly announced the termination of Dr. Dana Diab, an ER doctor, after she posted “Zionist settlers getting a taste of their own medicine” following the Hamas attacks on Israel along with images of the terrorists raiding an Israeli music festival. Shortly after being made aware of the post, the hospital announced on X, formerly known as Twitter. “We are deeply sorry for the hurt and offense these comments have caused. These views do not represent Lenox Hill Hospital and Northwell Health and go against our core values. The team member is no longer employed with Northwell.”
Law firm Winston & Strawn announced it had rescinded a prestigious summer associate job offer it had made to NYU law student Ryna Workman for statements they made as the president of NYU Law School Bar Association (Workman is reportedly nonbinary and uses the pronouns they/them).
In Workman’s message to the student bar association after the attacks on Israel, Workman expressed their “unwavering and absolute solidarity with Palestinians in their resistance against oppression toward liberation and self-determination. Israel bears full responsibility for this tremendous loss of life. This regime of state-sanctioned violence created the conditions that made resistance necessary. I will not condemn Palestinian resistance.”
Workman went on to condemn what they described as the violence of “apartheid,” “settler colonialism,” “military occupation” and “trapping thousands in open-air prison,” among other comments condemning and blaming Israel.
Winston & Strawn posted on LinkedIn that it had rescinded the offer, referring to Workman’s comments as inflammatory and saying that the statements profoundly conflict with its values as a firm. Winston & Strawn went on to express support for Israel, the firm’s Jewish colleagues and families, and to condemn the Hamas attacks. It said, “We look forward to continuing to work together to eradicate antisemitism in all forms and to the day when hatred, bigotry and violence against all people have been eliminated. Our strength lies in our unity, empathy and shared humanity.”
On Oct. 7, the Harvard Undergraduate Palestine Solidarity Committee issued a statement cosigned by 33 other Harvard student organizations stating, “We, the undersigned student organizations, hold the Israeli regime entirely responsible for all unfolding violence.”
Billionaire CEO Bill Ackman posted on X that he had been asked by a number of CEOs if Harvard would release a list of members of each of the Harvard organizations that issued the letter “so as to insure that none of us inadvertently hire any of their members.”
Ackman added, “One should not be able to hide behind a corporate shield when issuing statements supporting the actions of terrorists.”
Prestigious law firm Davis Polk told The New York Times that it had rescinded three offers to students who attend Columbia and Harvard, largely due to their affiliation with groups that posted statements condemning Israel for the attacks, but also said it was reconsidering two of them because the students contended they were unaware of and didn’t approve of the statements.
To protect all employees, employers should immediately take a stand against the rising antisemitism we are witnessing in society and among our work colleagues and prospective employees. Antisemitic comments cannot be tolerated, and anyone expressing these sentiments should be removed from the workplace; expressing support for the actions of Hamas is antisemitic.
Employers also should not tolerate disparaging remarks made against Palestinian Americans who are not affiliated with and do not support Hamas.