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Bari Weiss Claimed She Was Unlawfully Discriminated Against at The New York Times. Does She Have a Case?

The New York Times building is seen on June 30, 2020 in New York City. - The New York Times has become the highest-profile media organization to leave Apple News, saying the tech giant's service was not helping achieve the newspaper's subscription and business goals. The daily's exit comes as news organizations around the world struggle with declining print readership and an online environment where ad revenue is dominated by Google and Facebook.

In a blistering public resignation letter, former New York Times staff writer and Opinion editor Bari Weiss either accused or came close to accusing her colleagues at the paper of illegal conduct. After saying she was the “subject of constant bullying by colleagues who disagree with [her] views,” Weiss said that there are terms for describing the way she was treated—such as, “unlawful discrimination.”

Per Weiss:

They have called me a Nazi and a racist; I have learned to brush off comments about how I’m “writing about the Jews again.” Several colleagues perceived to be friendly with me were badgered by coworkers. My work and my character are openly demeaned on company-wide Slack channels where masthead editors regularly weigh in. There, some coworkers insist I need to be rooted out if this company is to be a truly “inclusive” one, while others post ax emojis next to my name. Still other New York Times employees publicly smear me as a liar and a bigot on Twitter with no fear that harassing me will be met with appropriate action. They never are.

There are terms for all of this: unlawful discrimination, hostile work environment, and constructive discharge. I’m no legal expert. But I know that this is wrong.

But does Weiss have a case?

Employment law attorney Tom Spiggle told Law&Crime it was “hard to see a viable legal claim” in Weiss’s missive — “at least based on what she details in the letter.”

“None of the actions are based on a protected class,” Spiggle explained. “At best, she suggests some didn’t like her based on Jewish heritage, which would be actionable. But it would be difficult to carry that claim if all that happened was someone complaining that she was ‘writing about the Jews again.’ Her critique of what should be a independent press is troubling, to say the least, but I don’t see a legal claim. Of course, that doesn’t mean she couldn’t achieve some kind of settlement from the company.”

Constructive discharge is when an employee is basically forced to quit by bad behavior by a company and/or colleagues.

“But, again, for it to be actionable, the conduct needs to be based on the employee’s protected status,” Spiggle said. “The conduct she describes here might indeed be the basis for constructive discharge if it was directed at her because she is a woman, for instance. As you point out, that does not seem to be the case here, even as she describes in her letter.”

Indeed, the resignation letter, while functioning as a bashing narrative against the alleged current standards and practices at the New York Times, suggests Weiss largely quit because of differences with corporate strategy and values, real or perceived. That is not grounds for a lawsuit.

William Healey, a management-side employment law attorney and member of Kluger Healey, LLC, arrived at a similar conclusion.

I do not see a discrimination and/or hostile work environment claim against the NYT for Weiss. What she appears to describe, at worst, is an environment where her social and political views were criticized and not accepted by peers, and as a result, she encountered bullying. She does not describe a situation where she experienced anything attributable to her gender, religion, etc., nor does she recount any adverse employment action by a supervisor or the NYT. It is also unclear if she ever complained to HR or other management.

Because there is no right to civility in the workplace (at least not yet), an employee’s expression of controversial or unpopular views at work is not by itself activity that is protected by the federal, state and city anti-discrimination laws. For this reason, combined with the fact that Weiss resigned, I do not see a viable employment law claim for her.

Healey, however, said Weiss “may have defamation and interference claims against the co-workers who maligned her”:

“Those claims would be based on the presumably false labels they gave her (liar, racist, etc.). However, here too, Weiss’s resignation will not help her,” Healey said. “For a worthwhile pursuit of such claims, she will need to establish some amount of actual damages.”

“Ironically, and most importantly, in defense of any such claim by Weiss, competent counsel will point to her resignation letter as the defense’s ‘Exhibit A,’ emphasizing that because of the attention SHE brought to her experiences at the NYT by her public resignation letter, SHE is responsible for any alleged reputational or other damages,” he added.

A spokesperson for the New York Times declined to comment.

[photo by JOHANNES EISELE/AFP via Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of The Daily Debrief on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.