Employers Must Tread Lightly With Response to Israel-Hamas War

The complex geopolitical dynamics underpinning the deadly Israel-Hamas war are putting pressure on the workplace as employers face calls to take a stance on the conflict, a demand that risks fueling discord among workers and inviting litigation.

Employees and supporters on both sides of the conflict have criticized companies for their silence or public declarations, which they deemed inappropriate. Some law firms have rescinded job offers to law students who publicly criticized Israel’s role in the current conflict, and a federal judge said he wouldn’t hire clerks who did the same.

Employers can speak out on the conflict, but attorneys urged against taking sides or a hard-line stance that could alienate workers, chill free speech or dissent, and invite adverse effects on their workplace morale and bottom line.

And although private-sector companies need not fear First Amendment claims from their employees, how they react to the situation could invite lawsuits under federal and state workplace laws.

“There are companies who are making very stern, very strong pro-Israel statements that’s alienating workers who are Palestinians” or those who associate themselves with Palestine due to personal connections, said Robert Baldwin III, founder and managing attorney at Virtue Law Group. “That’s a dangerous territory you’re venturing in. That’s not the message that you want to send if you care in any substantive way about having a peaceful and tolerable and inclusive work environment.”

At the same time,"there’s public pressure on companies to say something because silence is just seen as some type of endorsement of the status quo, and in some ways it is,” Baldwin said. “But in other ways, silence could be the only option because anything else might be detrimental to the company.”

Anti-Defamation League CEO Jonathan Greenblatt recently posted on X, the platform formerly known as Twitter, that “speaking out on the conflict doesn’t require companies to take a stand on the Israeli-Palestinian conflict or to sit for a seminar on Middle Eastern politics.”

“It just requires them to say torturing & murdering people because of their nationality is wrong,” he said.

Rescinded Job Offers

The political fallout of Hamas’ Oct. 7 attack on Israel and the ensuing war in Gaza on American college campuses and the workplace was swift. Hamas has been designated a terrorist organization by the US and the EU.

Winston & Strawn rescinded a summer associate job offer to the president of New York University’s student bar association after they published comments in a law school newsletter blaming Israel’s policy toward Palestine for the deadly attacks. Davis Polk & Wardwell also revoked offers to three law students at Harvard and Columbia universities after organizations to which the students belong made similar statements.

Several business leaders also backed billionaire hedge fund manager Bill Ackman’s call for Harvard to disclose the names of students whose organizations signed a letter faulting Israel for the attacks, and urged employers not to hire any of the students.

It’s legal for private-sector employers to rescind a job offer or someone’s employment for any reason. And unlike for public-sector workers, the First Amendment in this case doesn’t apply. That constitutional protection allows employees to exercise their free speech rights without government interference, but it doesn’t shield against discipline by a private employer.

“I find it problematic that offers are being withdrawn and that students are being doxxed for their statements,” said Michael Selmi, an employment discrimination law professor at Arizona State University’s Sandra Day O’Connor College of Law.

“But as a legal matter, private employers have substantial leeway in determining who they hire and even in the handful of states that provide some protection for lawful off-work activities, employers are typically able to take actions that protect their business and/or reputation, particularly when it comes to clients,” he said.

“I suspect law firms might justify their actions along these lines, keeping in mind that in most jurisdictions, no justification would be necessary,” Selmi said.

Baruch College law professor Debbie Kaminer, who writes on religion and employment law, said the firms’ actions were warranted because the students’ statements amount to an endorsement of Hamas’ attacks.

“There is no question” they can pull back job offers because supporting “terrorism is not a protected class,” she said.

National Origin Bias

When it comes to companies’ existing workforces, the at-will employment doctrine allows private employers to fire virtually all workers for any or no reason. But there are a few exceptions.

California, New York, and several other states have off-duty conduct laws that contain varying levels of protection for private workers’ online political speech.

And company statements or co-worker comments about the Middle East conflict could expose an employer to liability if a Jewish or Palestinian worker feels stigmatized or subject to knee-jerk assumptions about their beliefs based on their ethnic background, attorneys said.

Such a situation could give rise to a claim of national origin discrimination under Title VII of the Civil Rights Act of 1964 or state anti-bias laws.

Employers must ensure the workplace is free of any prejudice to Jewish or Palestinian employees based on their national origin or ethnicity, attorneys said.

“Some employers like to cut back on the amount of political discourse in the workplace. You can’t control what employees say to each other but maybe you don’t put up signs” that might be viewed as an endorsement of one side, Kaminer said. “You have to make sure you’re not permitting any kind of hostile work environment and allowing employees to harass each other.”

Applying workplace conduct rules evenly is also key, Baldwin said.

“Employers do have a duty to step in and provide an inclusive environment for everyone,” he said. “If you are going to go the direction of prohibiting some employees from talking about this, you will want to prohibit the entire discussion, not one side or the other because then you’re going to get into the territory of discrimination.”