I wrote this a while back on Hit Coffee and thought I would share it here for this audience, particularly in light of recent conversations. Be aware that this question actually involves a potential subplot in one of my novels and is not an effort to make some ideological point about coercion.
Jerry Gomez works as an IT person at a corporate law firm, Weicker & Schmidt. A woman named Beth Toomey is murdered in a high-profile manner and Jerry quickly emerges as a suspect when some emails are found where Toomey and Gomez were supposed to meet (somewhere around the time she was murdered) about something that Gomez was very upset about. When the police confront Gomez, he has a lawyer on speed-dial and refuses to say a word (refusing to even answer the question of how he knows Toomey). This only increases suspicion.
After the police do a search of his office at W&S, his boss and a corporate VP call Gomez into a meeting. Gomez assures the firm that he did not commit any crime and says that he is perfectly willing to take a polygraph to that effect provided that is the only question asked (the concern being that the police could subpoena the results and find out more than he wants to tell them). Likewise, beyond assuring them of his innocence, he will not explain any of the circumstances surrounding his relationship with Toomey for fear that they will be subpoenaed. The firm finds this unacceptable and they issue Gomez an ultimatum: fully cooperate with the authorities or you’re fired. Gomez refuses to cooperate and is fired.
Gomez is ultimately cleared of the crime (before charges are ever filed). Gomez sues the employer for wrongful termination on the basis that they should not be able to fire him on the basis of his exerting his constitutional rights. He loses the case because he lives in an Employment-At-Will state with no bad faith exemptions. That means that the firm can fire him for whatever reason they deem fit as long as it is not one of the exceptions carved out in the law (attempting unionization, whistleblowing, race/gender/etc.) and no such exception is made.
Gomez’s lawyers go to federal court on the basis that the Constitution is irreparably harmed if people are required to forego their rights in order to keep their jobs. Especially when, as in this case, no hardship is being brought to the company beyond the initial search of his office. In fact, until this lawsuit his employer was never mentioned in any of the newspapers. If Weicker & Schmidt are allowed to fire Gomez on the basis of his exerting his 5th Amendment rights, they could similarly act on other rights. For instance, they could be “good corporate citizens” and require employees to allow the police to search their car on traffic stops. If these sorts of things catch on, the protections in the Constitution become meaningless for all but the self-employed. They employer responds that the law is the law and having freedoms granted to you in the constitution does not grant you freedom from the repercussions of utilizing those freedoms. Gomez can assert his rights or not, but W&S simply doesn’t have to employ him. High-profile people are fired or punished for utilizing their First Amendment rights all the time: Whoopi Goldberg, Don Imus, John Rocker, etc.).
So the question is… do you think that Gomez should have a constitutional argument? If you think that W&S is in the right here on the basis that there is no right to continued employment simply because the Constitution does not allow the government to punish you, would you also support them if they wanted to institute the “good corporate citizen” policy of forcing employees to forego their Fourth Amendment rights against search and seizure? If not, how do you draw the line? If you agree with Gomez, do you also believe that someone who publicly makes offensive (anti-American, racist, anti-Semitic, etc.) comments should also be allowed to keep their job? If not, how do you draw the line?
An extra question for supporters of Employment At Will laws (I am one myself, for the most part): Would you make an exception of EAW in this case? If so, how would you draft it?