Does Brendan Eich Have a Case Against Mozilla?

Many of the comments at various blogs addressing the forced resignation of Brendan Eich emphasize the fact that Mozilla is a private company and can hire or fire whomever they want for any reason. 

This is partially true.  In at-will states, which California is, most employers have wide latitude in terminating the employer-employee relationship.  But they cannot wrongfully terminate an employee, violate the terms of an existing contract, or discriminate against an employee. 

Many people are drawing comparisons between A&E’s reaction to the comments about gay marriage from Duck Dynasty’s Phil Robertson to the current situation between Mozilla and Mr. Eich, but these two incidents are distinguishable.  While Robertson was presenting his personal views and not necessarily those of the network, he did so in a very public way in an interview that was about him as well as the show.  In a reality TV show like Duck Dynasty, the lines between what is personal and what is part of the show -- and therefore made very public -- are blurred.  We also don’t know what was in the contract between A&E and the Robertsons.  Thus, A&E could make the case that Robertson didn’t represent the views of the network, his words were offensive to the network and its audience, they believed those remarks would be deleterious to the success of the show and the network, and therefore they could no longer work together.  They could get away with this the same way Tiger Woods lost his sponsorships for philandering and Lance Armstrong for doping.  Yes, there is wide latitude.

When a company severs ties with an employee who steps over the morality line set forth in a contract, or breaks the law, or does something so reprehensible that the company cannot in good conscience continue the relationship, that is a very different animal than when an employee is punished for the exercise of his or her religious or political beliefs outside of the context of work, solely in his or her capacity as a private individual, and absent some kind of contractual restriction on permissible conduct.   

(As a sidebar, there are instances that are legally permissible but not practically tenable or morally tolerable.  For example, it was perfectly legal for Obama to nominate to the DOJ Mumia defender, Debo Adegbile, even though millions opposed this nomination as disrespectful and offensive to the victim’s family. Similarly, it might be practically untenable for Mr. Eich to have stayed on as CEO at Mozilla given the hateful climate towards him, but forcing his resignation isn’t necessarily legally permissible when it is only based on his personal religious and political views.) 

Could Mozilla legally force the resignation of a Jewish employee who had his son circumcised even if thousands of customers threatened a boycott or hundreds of employees found male circumcision offensive -- assuming, of course, he wasn’t employed at a pro-foreskin advocacy group?      

Could a Hollywood film director legally fire an actress because she is a registered communist and contributes funds to the Communist Party USA?

Could a law firm started by Jewish Holocaust survivors legally terminate a secretary who is a member of the Nazi Party?

Could Chick-Fil-A or Hobby Lobby legally force the resignation of their CEO if they found out that he made a $1000 contribution to NARAL or Planned Parenthood when the CEO’s personal views were never expressed at work?

Yes, First Amendment rights under the Constitution address only the relationship between the individual and the government -- not private enterprise.  But through a host of federal and state legislation, laws have been enacted over time that prohibit employers from discriminating against their employees on the basis of certain characteristics and further provide wrongfully terminated employees with legal remedies.   

Generally, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, national origin, color, religion, and gender.   Congress later enacted legislation that expanded discrimination to include age and disability.  Eventually, discrimination under federal law came to include marital status, sexual orientation and political affiliation, as well. 

State laws vary but most provide for the same protections.  Indeed, California is an “at-will” state, meaning the employment relationship can be terminated at any time for any reason.  But an employee cannot be wrongfully terminated in California or terminated on the basis of discrimination, that is, on the basis of age, race, sexual orientation, gender, disability, political affiliation, religion, or national origin.  (Wrongful termination suits can also be brought for retaliation for whistleblowing: taking time off for family leave, medical leave, or jury duty; filing a workers compensation claim; or refusing to enter an unsafe workplace.) 

If Mr. Eich could demonstrate that his forced resignation was the result of his political or religious views on gay marriage and had nothing to do with anything else -- and the evidence appears to be damning -- in the absence of a contractual out for the company or a waiver of his right to sue, the odds would favor Mr. Eich (unless the judge or jury were just as intolerant and bigoted as Mozilla.)  

Some have additionally remarked that Mr. Eich didn’t get fired, but caved in to pressure and resigned of his own accord, leaving him with no cause of action against the internet browser.  While we do not know what kind of documents he might have signed as a condition of his resignation or whether he was compensated in any way, being forced to resign could amount to what is called “constructive discharge.”  If an employee is compelled to resign because working conditions become too intolerable, or hostility from the employer is directed at the employee, or the employee is “demoted” for reasons other than performance, a claim could be made that he/she was constructively wrongfully discharged even though he/she resigned.   

There are many unknowns in the case between Mozilla and Mr. Eich, but when someone is fired for religious or political reasons having nothing to do with his conduct at work, and those religious or political acts were done completely outside of the workplace, there is a case to be made for religious or political discrimination.

I don’t know if Mr. Eich will fight this, but we all know this is just the tip of the iceberg.  Remember the map that was published showing registered gun owners in New York?  Remember the questions Tea Parties were asked by the IRS about their membership lists?  The identity and whereabouts of donors to campaigns, supporters of legislation, members in political organizations, and activists for political, religious or social causes, are forcibly disclosed for one reason and one reason only, and it isn’t because it is in some public interest:  these target lists are used for witch hunts to expose, harass and torment.  Law-abiding citizens -- good people--are persecuted in the privacy of their homes, on the internet, and at their places of work, simply for expressing their personal beliefs -- the absolute anti-thesis of what this country is about.

At a minimum, this has a chilling effect on our personal freedoms.  At the extreme -- which is where the left is staking out their territory -- it puts the country on a very slippery slope towards tyranny.  

Take a stand and fight fire(fox) with fire(fox) and tell Mozilla what you think: 

  1. Call:  (650) 903-0800(650) 903-0800(650) 903-0800(650) 903-0800, extension 231
  2. Email:  Mitchell@mozilla.org
  3. Write:   331 E. Evelyn Avenue, Mountain View, CA 94041.
  4. : Mitchell Baker, CEO, Mozilla Foundation. 

Many of the comments at various blogs addressing the forced resignation of Brendan Eich emphasize the fact that Mozilla is a private company and can hire or fire whomever they want for any reason. 

This is partially true.  In at-will states, which California is, most employers have wide latitude in terminating the employer-employee relationship.  But they cannot wrongfully terminate an employee, violate the terms of an existing contract, or discriminate against an employee. 

Many people are drawing comparisons between A&E’s reaction to the comments about gay marriage from Duck Dynasty’s Phil Robertson to the current situation between Mozilla and Mr. Eich, but these two incidents are distinguishable.  While Robertson was presenting his personal views and not necessarily those of the network, he did so in a very public way in an interview that was about him as well as the show.  In a reality TV show like Duck Dynasty, the lines between what is personal and what is part of the show -- and therefore made very public -- are blurred.  We also don’t know what was in the contract between A&E and the Robertsons.  Thus, A&E could make the case that Robertson didn’t represent the views of the network, his words were offensive to the network and its audience, they believed those remarks would be deleterious to the success of the show and the network, and therefore they could no longer work together.  They could get away with this the same way Tiger Woods lost his sponsorships for philandering and Lance Armstrong for doping.  Yes, there is wide latitude.

When a company severs ties with an employee who steps over the morality line set forth in a contract, or breaks the law, or does something so reprehensible that the company cannot in good conscience continue the relationship, that is a very different animal than when an employee is punished for the exercise of his or her religious or political beliefs outside of the context of work, solely in his or her capacity as a private individual, and absent some kind of contractual restriction on permissible conduct.   

(As a sidebar, there are instances that are legally permissible but not practically tenable or morally tolerable.  For example, it was perfectly legal for Obama to nominate to the DOJ Mumia defender, Debo Adegbile, even though millions opposed this nomination as disrespectful and offensive to the victim’s family. Similarly, it might be practically untenable for Mr. Eich to have stayed on as CEO at Mozilla given the hateful climate towards him, but forcing his resignation isn’t necessarily legally permissible when it is only based on his personal religious and political views.) 

Could Mozilla legally force the resignation of a Jewish employee who had his son circumcised even if thousands of customers threatened a boycott or hundreds of employees found male circumcision offensive -- assuming, of course, he wasn’t employed at a pro-foreskin advocacy group?      

Could a Hollywood film director legally fire an actress because she is a registered communist and contributes funds to the Communist Party USA?

Could a law firm started by Jewish Holocaust survivors legally terminate a secretary who is a member of the Nazi Party?

Could Chick-Fil-A or Hobby Lobby legally force the resignation of their CEO if they found out that he made a $1000 contribution to NARAL or Planned Parenthood when the CEO’s personal views were never expressed at work?

Yes, First Amendment rights under the Constitution address only the relationship between the individual and the government -- not private enterprise.  But through a host of federal and state legislation, laws have been enacted over time that prohibit employers from discriminating against their employees on the basis of certain characteristics and further provide wrongfully terminated employees with legal remedies.   

Generally, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, national origin, color, religion, and gender.   Congress later enacted legislation that expanded discrimination to include age and disability.  Eventually, discrimination under federal law came to include marital status, sexual orientation and political affiliation, as well. 

State laws vary but most provide for the same protections.  Indeed, California is an “at-will” state, meaning the employment relationship can be terminated at any time for any reason.  But an employee cannot be wrongfully terminated in California or terminated on the basis of discrimination, that is, on the basis of age, race, sexual orientation, gender, disability, political affiliation, religion, or national origin.  (Wrongful termination suits can also be brought for retaliation for whistleblowing: taking time off for family leave, medical leave, or jury duty; filing a workers compensation claim; or refusing to enter an unsafe workplace.) 

If Mr. Eich could demonstrate that his forced resignation was the result of his political or religious views on gay marriage and had nothing to do with anything else -- and the evidence appears to be damning -- in the absence of a contractual out for the company or a waiver of his right to sue, the odds would favor Mr. Eich (unless the judge or jury were just as intolerant and bigoted as Mozilla.)  

Some have additionally remarked that Mr. Eich didn’t get fired, but caved in to pressure and resigned of his own accord, leaving him with no cause of action against the internet browser.  While we do not know what kind of documents he might have signed as a condition of his resignation or whether he was compensated in any way, being forced to resign could amount to what is called “constructive discharge.”  If an employee is compelled to resign because working conditions become too intolerable, or hostility from the employer is directed at the employee, or the employee is “demoted” for reasons other than performance, a claim could be made that he/she was constructively wrongfully discharged even though he/she resigned.   

There are many unknowns in the case between Mozilla and Mr. Eich, but when someone is fired for religious or political reasons having nothing to do with his conduct at work, and those religious or political acts were done completely outside of the workplace, there is a case to be made for religious or political discrimination.

I don’t know if Mr. Eich will fight this, but we all know this is just the tip of the iceberg.  Remember the map that was published showing registered gun owners in New York?  Remember the questions Tea Parties were asked by the IRS about their membership lists?  The identity and whereabouts of donors to campaigns, supporters of legislation, members in political organizations, and activists for political, religious or social causes, are forcibly disclosed for one reason and one reason only, and it isn’t because it is in some public interest:  these target lists are used for witch hunts to expose, harass and torment.  Law-abiding citizens -- good people--are persecuted in the privacy of their homes, on the internet, and at their places of work, simply for expressing their personal beliefs -- the absolute anti-thesis of what this country is about.

At a minimum, this has a chilling effect on our personal freedoms.  At the extreme -- which is where the left is staking out their territory -- it puts the country on a very slippery slope towards tyranny.  

Take a stand and fight fire(fox) with fire(fox) and tell Mozilla what you think: 

  1. Call:  (650) 903-0800(650) 903-0800(650) 903-0800(650) 903-0800, extension 231
  2. Email:  Mitchell@mozilla.org
  3. Write:   331 E. Evelyn Avenue, Mountain View, CA 94041.
  4. : Mitchell Baker, CEO, Mozilla Foundation.