According to the Reader’s Digest (UK) one of the most controversial classical music compositions of all time is John Adams’ opera Death of Klinghoffer. The opera is based on the Palestine Liberation Front’s (PLF) hijacking of the Italian cruise ship Achille Lauro in 1985. As a disclaimer, the following information about the opera and hijacking is only a summary and comes from Britannica and Wikipedia.
The hijacking occurred when the Achille Lauro was in port in Alexandria, Egypt Only 97 of the 700+ passengers were on board, as most had gone onshore. The terrorists took all 97 passengers hostage and ordered the crew to sail the ship to Syria.
The next morning, the terrorists made several demands, including that Israel release 50 Palestinian prisoners and that representatives from the International Red Cross, Great Britain, and the United States board the ship. The hijackers shuffled passenger and crew passports, and pulled aside 18 American and British passengers, including the Klinghoffers, an American Jewish couple celebrating their anniversary. Mr. Klinghoffer was in a wheelchair, and his wife was a cancer patient, who would die of the disease four months later.
When the hijackers’ demands were not met within four hours, the hijackers murdered Leon Klinghoffer. The hijackers then, at gunpoint, ordered crew members to throw both Mr. Klinghoffer and his wheelchair overboard. The hijackers then told Mrs. Klinghoffer that her husband had been taken to the infirmary.
There were ongoing negotiations among Italian, British, American, Egyptian, and Syrian governments and the Palestinian Liberation Organization (PLO) regarding jurisdiction over and the fate of the hijackers. Based on the understanding that no hostages had been harmed, the governments involved agreed that the PLO could take custody of the hijackers and put them on trial.
After the hijackers left the ship, Mr. Klinghoffer’s murder was discovered, but the PLO denied the hijackers were responsible. The international incident and U.S. military action that ensued are beyond the scope of this article.
Adams’ opera premiered in 1991, just six years after the hijacking. Many renounced the opera as antisemitic and a glorification of terrorism -- Adams and the opera’s sponsors disputed. The opera has continued to be controversial, in part due to the opera’s fictionalized backstories of the hijackers, which objectors say present the hijackers as sympathetic characters, rather than terrorists.
A 2001 Boston Symphony Orchestra performance of extracts from the opera was cancelled in light of the September 11 terrorist attacks. When the Metropolitan Opera performed the opera in 2014, the Anti-Defamation League issued a statement from the Klinghoffer family, which was featured in the opera’s playbill. The Met also cancelled its simulcast and radio broadcast of the opera in response to concerns that they might fuel an increase in antisemitism.
The raw emotion triggered by the murders that sparked the Israel-Hamas War mirrors the profound pain felt at the time of Mr. Klinghoffer’s murder during the Achille Lauro hijacking. Differing positions regarding the Israel-Hamas war have resulted in protests and controversy, including disputes between employers and employees. One such dispute, involving a New York coffee shop chain whose owner was pro-Israel, made international news.
This article discusses whether an employer can discharge an employee whose viewpoint about the war differ from the employer’s. Although this article describes a recent news report about a pro-Israel business, the law applies equally to employers with other viewpoints. In particular, strong emotions related to the 2024 presidential election may trigger workplace political conflicts.
One New York Coffee Shop’s Experience
Conflicts over political speech in the workplace aren’t new. A November Wall Street Journal (WSJ) article noted that #MeToo, George Floyd’s murder, Black Lives Matter, anti-Asian attacks, Donald Trump’s presidency, Ukraine War, and abortion rights have forced employers to make difficult decisions about what political speech to allow. However, the October 7 Hamas attacks and resulting Israel-Hamas war have triggered particularly strong responses.
A recent New York Times (NYT) article (Did a Café’s Pro-Israel Stance Cause a Staff Revolt? It’s Complicated.) describes how Caffe Aronne found itself overwhelmed with customers and volunteer workers after its owner posted on social media that employees had walked out due to his pro-Israel position. The coffee shop’s owner has a deep connection to Israel, as his family lived in British Palestine before Israel was formed.
After the owner’s cousin and girlfriend were killed in Hamas’ October 7 attacks, he decorated his coffee shop with Israeli flags. In an essay written for the New York Post (Post), he compared the flags to the Ukrainian flags the coffee shop displayed after the Russian invasion.
In the Post, the owner said he “felt like we needed to do more for the hostages, especially after we learned about my cousin and his girlfriend’s grim fate – their bodies were so mutilated, it took eight days to identify them. . . So we put up hostage posters in the window — and we weren’t the only business in the neighborhood to do so.” The coffee shop also posted information about a pro-Israel fundraiser.
However, the owner’s pro-Israel stance didn’t receive the same welcome as his support of Ukraine. Some employees responded to the coffee shop’s pro-Israel display by wearing Palestinian pins on their work aprons. According to the NYT, one employee allowed someone to take a photo of her wearing the pin. The photograph was posted on social media and eventually made its way to one of the coffee shop’s family members.
The NYT reported that in employees said they objected to the owner’s turning “their workplace into what they described as a ‘political space.’” Employees didn’t show up for their shifts. Some employees quit, one telling the NYT she didn’t want to “continue to support a business that does not also advocate for Palestinian freedom and a cease-fire.”
The employer told the NYT “’It’s a Zionist, pro-Israel man who owns a coffee shop with a staff whose political views and morals didn’t align.’” The NYT reported the employer’s attorney “said in a statement that [his client] believed the cafe’s former employees had made a ‘deliberate attempt to . . . force [the coffee shop] to close in retaliation for proudly displaying the Israeli flag and standing firmly with its people.’” He continued, “What started as a setback ended up as a setup for an astonishing display of solidarity, love and support.”
Regardless of individual employees’ motives, the Café Aronne story presents a legal issue that many employers face – what rights do employers and employees have to express their political viewpoints in the workplace? Although the Israel-Hamas war has elicited strong, emotional responses, both employers and employees must confront the same legal issue any time they have differing political viewpoints. In 2024, the presidential election also is likely to engender conflicts as employers and employees with strongly held political positions clash in the workplace.
What Rights do Employers and Employees Have?
Many people believe they have a “First Amendment Right” to express their opinions at any time or place. But the First Amendment only applies to government action, not private businesses, employers, or institutions.
Further, the First Amendment freedom of speech also is not absolute. The Supreme Court also has allowed content-based restrictions to the freedom of speech, which are beyond the scope of this article. And even the government may impose reasonable across-the-board time, place, and manner restrictions on speech.
Unlike the government, under federal law, a private employer has broad latitude to limit political speech in the workplace. Under the National Labor Relations Act, employers can’t restrict speech directed to other employees relating to employment conditions, collective bargaining efforts, or other labor or work issues. But otherwise, employers usually can control discourse, including political speech, in the workplace.
So, employees who express their viewpoints about Israel or the war—or any other political issue —generally can be disciplined or fired because of their positions. But employers usually may express their political viewpoints or as one of the coffee shop’s employees commented, turn their business into a political space.
Employment discrimination laws are distinct from restrictions on speech and vary from state to state. Employers may not discriminate against employees based on their race, religion, color, or national origin. So, an employer could not take adverse action against a Jewish employee due to their religion or ancestry or an employee who grew up in the West Bank due to their national origin.
Based on the NYT articles, the Café Aronne employees did not claim discrimination based on their religion, national origin, or ancestry. Rather, their objections appeared to be based on their political positions (e.g., wearing a Palestinian flag in the workplace), which is not protected by federal employment discrimination laws.
Some state and local governments prohibit discrimination based on political activities. New York City (NYC), where Café Aronne is located, prohibits employees from discrimination based only political activities the employee engages in outside of working hours, provided those activities do not occur at the workplace and do not use the employer’s property or equipment. NYC law does not protect employees, like those at Café Aronne, who wish to express their political opinions through symbolic speech during their work shifts.
Many believe their employer can’t fire them for their political speech and activities outside of the workplace. However, the NYC prohibitions on employment discrimination based upon employee speech outside the workplace is uncommon. In most places, private employers may lawfully hire and retain only employees who share their political beliefs – and fire those who do not.
Legally, the safest practice is for employers who want to limit political discourse to have content-neutral restrictions that apply to all employees. For instance, they might limit all political discourse, rather than just anti-Israel discussions. Yet, in most states and localities, a content-based restriction is not necessarily unlawful.
Similar issues arose during the Black Lives Matter (BLM) movement when employees faced disciplinary action for promoting BLM in the workplace, frequently by wearing BLM buttons or patches. Since the BLM is tied to race, employers who targeted BLM but allowed other forms of expression were vulnerable to race discrimination claims.
Yet, at least one court held that a blanket prohibition specific to BLM might be permissible if the employer disciplined all employees wearing BLM attire without regard to an employee’s race. Using that court’s analysis, an employer could prohibit pro-Palestinian or pro-Hamas expression, as long as the prohibition applied to all employees regardless of their race, religion, color, or national origin.
According to the NYT article, employees at Caffe Aronne didn’t claim they were required to expressly support Israel. But what if an employer required employees to support of Israel or approve of Hamas’s invasion? Or what if an employer required employees to engage in symbolic speech by wearing an Israeli flag pin?
Federal law doesn’t protect employees from a consistently-applied employer political mandate—unless the requirement discriminates against or harasses employees in a protected class. For instance, it might be considered harassment if an employer required Jewish employees to put up a workplace poster depicting Jews as evil. And it likely would be unlawful discrimination to require that only employees with surnames the employer perceives to be Jewish to wear a Palestinian flag pin.
Employers should know some state and local governments may prohibit employers from imposing the employer’s political viewpoints on the employees and retaliating against employees who don’t support the employer’s political case. Yet in many states, employees may have to support the employer's position (or at a minimum not speak against the employer’s position) or risk losing their jobs.
From the NYT article it doesn’t sound like the employees claimed Café Aronne fired them. Rather, the article indicates the employees objected to their employer’s ardent support of Israel and silencing speech to the contrary.
Subject to applicable anti-discrimination laws, the employer was entitled to set the political tone for his business. Employees who disagree with the employer’s viewpoint may quit their jobs. So, had the employees not quit, Café Aronne could have fired those who used the workplace to express political viewpoints contrary to the employer’s – as long the employer’s policy applied equally to all employees regardless of their individual religions, national origin, race, color, or ancestry.
Conclusion
Employees should remember that they have no First Amendment freedoms in a private workplace. Under federal law, as long as they don’t violate anti-discrimination laws, employers may support a cause they believe will help them gain business. Or, like Café Aronne’s owner, to support a cause is so important to them that it supersedes business concerns. However, state and local laws may have different requirements.
Federal law is unclear about whether a content-neutral employer policy that restricts employees’ ability to support a cause tied to their personal race, national origin, or religion could be unlawful discrimination. Therefore, most attorneys would recommend that employers adopt consistently applied content-neutral policies that don’t disproportionately affect employees in a protected class.
Even where such a disproportionate impact exists, an employee’s discrimination claim likely would be unsuccessful if the employer could show that the content-neutral policy was implemented due to legitimate business considerations, rather than to discriminate against employees in certain protected classes. Employers desiring to adopt content-specific policies should know state and local laws, which might prohibit those policies even where federal law does not.
As we move into 2024, the presidential election may also lead to strong, emotional political disputes in the workplace. Except in jurisdictions that prohibit discrimination against political speech in the workplace, employers may be free to turn their businesses into “political space,” and except for quitting their jobs, there may be little the employees can do to object.
This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.
