Fired for the Middle Finger

Recently, Julie Briskman, gave the middle finger to President Trump’s motorcade and a picture of it made the news. When she admitted to her employer that it was her, she was terminated.

Briskman was cycling down a road in Virginia when the President’s vehicle passed by. She took the opportunity to raise her hand in the air and let the President know how she felt about him. The picture went viral and a lot of other people learned how she felt about him, also, including her employer. Though it was difficult to identify her in the photo, Briskman admitted to her employer that it was she in the photo, which ultimately led to her termination.

The First Amendment prohibits the government from limiting freedom of speech (with some exceptions). But private employers are not the government, so private employers can limit many types of speech unless specifically excluded by legislation. So, a private employer, like Briskman’s employer, is not required to permit employees to freely give the finger.

Surely, Briskman would like to bring a wrongful termination case, and is working with lawyers familiar with employment laws and litigation at the ACLU in an apparent effort to build a case. Just what theory Briskman will bring is a mystery, as it is likely her employer had the right, under the usual “at-will employment” rule, to terminate her for her widely seen display of her disapproval of Mr. Trump.

Perhaps she will attempt some kind of discrimination or retaliation claim if she can show that others were not punished for similar conduct, and her employer was motivated by her gender, for example, or some other protected characteristic. It appears an uphill battle.