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Firing of Law Firm Associate for Anti-Israel Letter

David Lat (Judicial Notice) writes, and I agree with him (at least assuming, as press accounts suggest, that Kiros was indeed fired for the viewpoint expressed in her open letter):

Another associate has lost their job because of a controversial statement about the Israel-Hamas conflict. Meet Melat Kiros, a 2022 graduate of Notre Dame Law and, until recently, a securities regulatory and enforcement associate in the New York office of Sidley Austin. She published an open letter on Medium responding to—and criticizing—an open letter signed by 200+ law firms, in which the firms urged law school deans to crack down on antisemitism on their campuses. While she condemned antisemitism, she argued against “conflat[ing] such bigotry with the geopolitical question of Israel’s legitimacy.” Kiros’s letter went viral, she was asked to take it down, and after she refused, she was fired.

I’m going to be honest: I have concerns about Kiros’s firing. Unlike some pro-Palestine statements, Kiros’s cannot be reasonably read as supporting the October 7 attack specifically or terrorism more generally, since it explicitly declares that “[t]here is no justification for the attacks on Israel on October 7th.” It just happens to be a very pro-Palestine letter that advocates a single-state solution, a secular nation “where all citizens are equal under the rule of law, regardless of religion or ethnicity.”

I disagree strongly with most of Kiros’s letter. For starters, I favor a two-state solution, including an Israel that is explicitly a Jewish state. But I don’t consider her views to be outside the so-called “Overton window,” and while I acknowledge Sidley’s legal right to fire her, I’d prefer to live in a world where employers tolerate a wide range of views on controversial issues. As Greg Lukianoff of the Foundation for Individual Rights and Expression (FIRE) recently told me, “Does [a law firm] have the right to hire or fire whomever they want? Yes. And can they base it on things including their speech? Yes. But our goal is to get people to at least consider, in a way that we used to be better at as a society, old ideas like everyone’s entitled to their opinion.”

For a similar criticism by David Lat of law firms retaliating against lawyers for their skepticism about Roe v. Wade, see this 2022 post.

One possible quibble: It’s an interesting question whether New York law forbids discrimination based on off-duty speech, on the theory that such speech is “recreational.” The statute, N.Y. Lab. Law § 201-d, provides,

(1) … (b) “Recreational activities” shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ….

(2) … (c) [No employer may discriminate against an employee or prospective employee] because of … an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property …

(3)(a) [This section shall not be deemed to protect activity that] creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest ….

(4) [A]n employer shall not be in violation of this section where the employer takes action based on the belief … that: … (iii) the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.

(A separate provision, discussed at p. 327 of this article, protects election- and party-related political activities.) The treatment of “reading and the viewing of television, movies, and similar material” as “recreational activities” suggests that writing material might likewise be viewed as recreational (especially when it’s not done for pay).

One court decision has indeed treated “recreational activities” as including arguing about politics at a social function, Cavanaugh v. Doherty, 243 A.D.2d 92, 100 (N.Y. App. Div. 1998), but another has held that picketing is not sufficiently “recreational” to qualify. Kolb v. Camilleri, No. 02-CV-0117A(Sr), 2008 WL 3049855, at *13 (W.D.N.Y. Aug. 1, 2008). El-Amine v. Avon Products, Inc., 293 A.D.2d 283 (N.Y. App. Div. 2002), allowed plaintiff’s case to go forward based on claims that defendant had “fired him because of his political activities—in particular, because of his participation in a political funeral honoring Matthew Shephard” (see opinion below), even though that sort of political activity wouldn’t literally be covered under the narrow definition of political activity discrimination under New York law.

I’ve seen other recent cases filed alleging that off-duty ideological advocacy should count as “recreational” and thus protected from firing (much as it would be in some other states, including California, under their differently worded laws). Perhaps we’ll see some cases definitely resolving this important legal question.


November 2023