An Associate’s Final Solution

Following the open letter by more than 200 law firms urging law deans to take action against anti-Semitism on their campuses and expressing their intolerance of anti-Semitic and Islamaphobic hatred, a Sidney Austin first-year associate posted an open letter in response. Joe Patrice at Above The Law loved the letter. The associate’s firm, however, did not, and fired the associate.

David Lat argued, with Eugene Volokh’s agreement, that as much as he disagreed with the content of the letter, the associate should not have been fired for what was essentially her personal political view expressed on her own time.

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.”

While it’s true that the letter can’t be reasonably read as supporting Hamas’ terrorist attack, it’s also true that it’s hardly much of a condemnation, equating the attack with Israel’s defensive response. The full sentence reads somewhat differently.

There is no justification for the attacks on Israel on October 7th, just as there is no justification for the disproportionate and collective punishment being waged on the Palestinian people by the Israeli government in retaliation, but it cannot be forgotten that violence does not occur in a vacuum.

Lat’s beef with the letter tends to be against a one-state solution, a new nation of all religions and ethnicity where Jews and Palestinians live together in peace and harmony.  Few consider that as a viable possibility. Whether a two-state solution is possible is subject to debate as well, even though it’s proffered as the best of bad options. But I digress.

Eugene Volokh raises a “quibble,” whether the firing of the associate violates New York Labor Law § 201-d, which protects employees from discrimination based on political activities conducted outside of employment, which it characterizes as “recreational activities.”

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;

Assuming the associate crafted and posted her open letter on her own time, and assuming (as Eugene expressly notes) that the associate was fired solely due to the letter and not for other reasons, did her discharge by her law firm violate § 201-d?

Laws like this tend to be one-size fits all. The same law would apply whether the employee at issue worked bagging groceries at the supermarket or was a lawyer at Biglaw. While it could well be argued that such laws should apply to everyone without regard to the nature of their occupation, profession or job, the better argument is that the nature of the position imposes different responsibilities, which in turn means that the recreational activities distinction doesn’t work the same for lawyer as grocery bagger.

My great uncle, a lawyer, told me a story about how he would mow the lawn wearing a three-piece suit, which struck me as ridiculous. He explained, however, that he was a lawyer at all times, including when he mowed the lawn. A lawyer, he said, doesn’t cease being a lawyer when he’s doing something else, and he reflected and acknowledged this by wearing his lawyer suit when mowing the lawn. It still struck me as absurd, but I got his point.

In the open letter, the associate opens by referencing the fact that she’s a lawyer and she works for a firm that signed the initial open letter.

Beginning on November 1st, 2023, numerous US law firms, including my own, signed a letter. This letter rightfully rebukes the anti-Semitism, Islamophobia, and bigotry of all kinds that has spiked in recent weeks, but then goes on (to my confusion) to cite “calls for the elimination of the Israeli state” as anti-Semitism.

By doing so, she chose to draw attention to her status as lawyer, perhaps to establish her credibility or merely to explain her interest, and to her firm’s position with which she, the first-year associate, finds confusing. Does this establish a sufficient connection between the author and her employer to remove it from “recreational activities”? While political activities, generally, would have no nexus with employment for most people, does noting one’s employment bring her employer into the mix?

Perhaps I’ve taken my great uncle’s lesson too much to heart, but we’re lawyers 24/7. Had the writer been pseudonymous or made no mention of her profession or employer, then the fact that she was a lawyer would be irrelevant. But we hold positions of trust, and if clients or her employer thinks her judgment, reasoning or politics makes her unreliable or untrustworthy, then it has a duty to act.

Had she written a neo-Nazi screed, few would question whether her employer should fire her or whether clients could reasonably trust her judgment. And it would have been just as recreational as this open letter was, so long as she did it under her own name and made note of her profession and employer.

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