By: David S. Levine
As we have previously written, employers are increasingly confronting difficult questions regarding how to respond, if at all, to employees’ off‑duty conduct. A recent opinion from the Northern District of Illinois underscores the legal risks associated with such decisions—particularly where the conduct touches on issues of race, religion, or other protected characteristics.
The Speech: “I’m sorry the people of Gaza did not sit quietly.”
Jinan Chehade is a Muslim woman of Arab descent who grew up in the “Little Palestine” neighborhood of Chicago. On October 7, 2023, days before Chehade’s scheduled start date at the Chicago office of the Foley and Lardner LLP law firm, Hamas attacked Israel, killing more than 1,200 civilians and taking hundreds hostage.
In response to the attack, Chehade shared public comments that, among other things, criticized Israel. On social media, she posted:
As you see Palestine in the news, keep two things in mind:
- Colonization is inherently violent. Occupation is violent. Israel’s existence was brought about by violence. Never equate the violence of the oppressed with that of the oppressor. The colonized with the colonizer.
- If you support Palestine understand that necessitates supporting our right to defend ourselves and liberate our homeland by any means necessary. The colonizing power determined what was necessary when they colonized us by force and continue to genocide Palestine. You cannot claim to stand with Palestine if you prefer us to be slaughtered without fighting back. Freedom has only ever been achieved through resistance.
#FreePalestine #WithinOurLifetime
At a city council meeting, Chehade added that the “Western Zionist controlled media machine would have you believe that this was an unprovoked attack. However, this is the natural response to 75 years of occupation, such that this resistance is a legal right for the Palestinian people according to international law . . . I’m sorry the people of Gaza did not sit quietly.”
The Response: A Rescinded Offer and Lawsuit
When Foley learned of these statements after reviewing Chehade’s social media, firm leaders disagreed about how to proceed. Some believed that no action was warranted. Others recommended allowing Chehade to start and then addressing the issue later, if necessary. A third group expressed concern that the statements reflected poor judgment, supported violence, and warranted a rescission of her offer.
After additional review—including a meeting with Chehade in which she discussed her family background and defended her prior statements—the firm decided to rescind her offer. Foley explained the decision by stating, among other things, that Chehade’s statements were “misaligned” with the firm’s “core values.”
After the decision, Chehade filed a charge of discrimination followed by a lawsuit against Foley in federal court. The suit claims that her race and religion motivated Foley’s rescission and that the decision therefore constituted unlawful discrimination under federal and Illinois law. After some discovery, the firm asked to dismiss the case without a trial. In its motion, Foley argued that the evidence showed that Chehade’s offer was rescinded not based upon her religion or race, but instead because her statements violated the firm’s core values and reflected poor judgment.
The Decision: “Employers rarely admit an unlawful motivation for terminating an employee.”
In its decision in late January 2026, the court denied Foley’s motion and allowed Chehade’s case to proceed. In short, the court held that a reasonable jury could conclude that Chehade’s race or religion motivated, at least in part, Foley’s decision to rescind her job offer.
Central to the court’s analysis was evidence that Foley arguably applied its standards unevenly. Chehade identified other Foley attorneys—of different races and/or religions—who made arguably inflammatory social media posts about the October 7 attacks but were not disciplined. The court also emphasized the lack of clear standards defining Foley’s “core values,” the questionable basis for its social media search that brought Chehade’s comments to light, and its subsequent questioning of Chehade about her family and background.
To be clear, the court did not find that Foley discriminated against Chehade. But the court noted that “employers rarely admit an unlawful motivation for terminating an employee” and that a genuine dispute existed over the reasons for Foley’s decision. Accordingly, a jury would need to determine whether unlawful discrimination occurred.
Employer Takeaways
This decision highlights several practical lessons for employers confronting off‑duty conduct issues.
Vague Policies. This case offers another illustration of how vague policies can create risk for employers. In the litigation, Foley has argued that its “core values” motivated its employment decision. But in the opinion allowing the case to proceed, the court emphasized the lack of clear, objective standards defining those values.
Employers must ensure that policies governing off‑duty conduct are specific enough to guide decision‑making and withstand judicial scrutiny. That is particularly so, of course, when an employer seeks to invoke the policy as the basis for an employment decision.
Social Media Searches. An important corollary issue concerns an employer’s reliance on an employee’s social media posts in making employment decisions. Foley claims that it searched for Chehade online to obtain a photograph of her for the new associate directory. But Chehade disputes that explanation, and Foley did not appear to have any policies or consistent practices with respect to the circumstances under which human resources personnel conduct online searches regarding employees.
To be sure, reasonable employers can disagree regarding when and how to conduct online searches of employees. But at a minimum, the decision should not be at the whim of a particular manager or human resources professional. Employers should adhere to consistent and clear protocols for human resources and other decisionmakers regarding the circumstances under which online searches for employees and job candidates are appropriate.
Disentangling Speech From Speaker. One final takeaway serves as a reminder of the challenge that these off-duty questions can present. As noted, Foley’s position is that it acted based on the substance of Chehade’s public statements—not her religion, race, or other protected characteristic. But the court’s analysis reflects a practical reality employers increasingly face: when off‑duty speech is closely intertwined with topics of race, religion, or national origin, it can be difficult to separate the content of the speech from the identity of the speaker.
When employers confront these thorny situations, they should proceed with particular care. In such situations, employers should closely examine—and precisely articulate—the rationale for any adverse action and ensure that the stated explanation is consistent, well‑supported, and capable of withstanding judicial scrutiny.
Fox Swibel can be reached at any time to discuss these issues. Please contact Steve Brenneman, Kelly Smith Haley, David Levine, or the Fox Swibel attorney with whom you regularly work to discuss.
David S. Levine
David Levine is a partner in the Firm’s Employment Law and Litigation Groups. David’s practice focuses on representing clients in a wide range of labor and employment matters, as well as other business disputes. As part of his litigation practice, David regularly defends employers in class, collective, and individual actions involving claims under the FLSA, Title VII, ADA, and other federal and state statutes. David also often litigates individual and class actions involving data privacy issues, in particular cases under the Illinois Biometric Information Privacy Act (BIPA). He practices in state and federal courts and before administrative agencies such as the EEOC, DOL, and DOJ.
This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.