Employment at-will is the default rule in American law. In the absence of an employment contract, employers are generally free to discharge workers for any reason not barred by statute or public policy. Typically, an employee can be fired when an employer dislikes an employee's self-expression that is not specifically protected by law. However, recent developments in employment discrimination law may provide the foundation for a burgeoning right to self-expression in the workplace. In its recent case Bostock v. Clayton County, the Supreme Court ruled sexual orientation discrimination and transgender discrimination necessarily involve sex discrimination under Title VII. The Court's focus on expanding Title VII sex discrimination to address all employer practices that consider an individual employee's sex, rather than limiting the statute's coverage to employer practices that more generally discriminate against women because they are women or against men because they are men, broadens Title VII. In addition, the proposed federal Create a Respectful and Open World for Natural Hair (CROWN) Act of 2021 and various similar laws enacted in states bar discrimination based on racialized hairstyles and hair texture. The CROWN Acts arguably expand race discrimination to include discrimination because of traits associated with race. Taken together, Bostock and the CROWN Acts can be interpreted to broaden Title VII and other employment discrimination statutes to redress employer practices that bar employee self-expression related to protected characteristics under those statutes.
Bostock, the CROWN Acts, and a Possible Right to Self-Expression in the Workplace, 25 Employee Rights & Employment Policy Journal 53 (2021).