Can an employer fire a publicly-avowed white supremacist?

Screenshot of rally photo from Huffington Post

While following developments concerning the horrific white supremacist/neo-Nazi/KKK rally in Charlottesville, Virginia this weekend, I asked myself, how would I like to be working with one of these lovely individuals? I then thought, if I was a manager, could I simply fire a white supremacist for participating in the rally?

The answer to the first question is easy and purely personal: No way would I want to share office space, a cubicle area, an office suite, a store floor, or a factory floor with one of these folks. And as an Asian American, I assume they’d feel the same way towards me.

The answer to the second question is more objective, complicated, and nuanced: Yes, in many instances the law would allow a manager to terminate a white supremacist for participating in the rally, but there are potential exceptions and twists, especially for unionized and/or public employees. Without pretending to be exhaustive on the topic, here’s a brief lowdown of relevant legal rules:

  • In the U.S., the rule of at-will employment is the presumptive legal hiring relationship. Among other things, it means that an employer can hire or fire someone for any reason or no reason at all, so long as it does not violate existing legal protections or obligations.
  • Fair or not, the rule of at-will employment allows employers to make hiring and termination decisions based even on many types of off-site, non-work-related activities.
  • Employment discrimination law prohibits discrimination against or harassing of other employees on the basis of certain characteristics, including race, sex, religion, color, national origin, age, and disability. This would be especially relevant if someone took their white supremacist messages into the workplace.
  • For private-sector workers, constitutional free speech protections do not apply to their jobs.
  • For public-sector workers, constitutional free speech protections may apply if they are speaking out on matters of public concern in ways that aren’t related to or internally disruptive of their work. (Yes, as noxious as it may be to some of us, it is arguable that a public-sector worker participating in this rally would be protected from termination under this set of legal rules.)
  • For unionized workers, collective bargaining agreements may provide additional substantive and procedural safeguards for wrongful termination, which may cover off-site conduct.
  • A minority of employees have individual employment contracts with so-called morals clauses that may be relevant in these situations. 
  • State law can matter in these situations. Connecticut, for example, has a broad employee free speech law that covers both private and public sector workers. California has a law that protects employees’ right to political expression.
  • If an employee engaged in violent behavior, especially that leading to a criminal conviction, their potential legal protections against wrongful termination would severely diminish.

Taking all these points into consideration, what does this mean for whether employers could fire workers for participating in one of these rallies on their own time? Bottom line is that many private-sector employees could probably be terminated without much risk of liability, but that public-sector workers may be able to raise constitutional free-speech protections. However — and here’s my lawyer’s analytical caution entering the picture — each situation would have to be evaluated individually. There’s no sweeping, catch-all rule that answers this question as yes or no for every situation.

***

August 14 update: This topic has gained relevance due to efforts by certain civil rights/social media activists to “out” white supremacist protesters who are appearing in published photographs of the Charlottesville rally. Apparently the first protester to lose his job is a young man who worked at a fast food eatery, Top Dog, in Berkeley, California, per this piece in the UC-Berkeley student newspaper. 

If readers detect some ambivalence on my part on the use of such tactics, then their perceptions are accurate. I abhor and detest these white supremacists and their worldview. But I also have concerns over how social media can be used to go after anyone in ways that have significant consequences. I think we need to be very careful about determining one’s suitability for employment based on off-site conduct that, while deeply objectionable, may be legal. 

***

Though slightly dated, the legal discussion in my 1998 law review article on the free speech rights of private-sector employees, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace” (Berkeley Journal of Employment and Labor Law), remains largely intact today. You may access it without charge here.

10 responses

  1. There are many symbols that offend, that strike fear, that represent hate in its various forms. Most of these don’t get the time of day, yet have claimed thousands if not millions of victims. We have to work with these purveyors of hate everyday. They don’t wear identifying symbols other than that of the employer.

  2. Definitely – as my very case shows. An employee idolizing Hitler gets protection, I – the one reporting it- gets kicked out, and at a Harvard affiliate – Dana Farber Cancer Institute at that, blackballed and sidelined in the courts of law in Massachusetts. Hypocrites!
    More at: http://www.stopemployerbullying.org

  3. On firing a white supremacist

    Such an important and timely question. It surely makes for a case example for workshop purposes.

    Sharing the views of students will be rewarding. I would expect discussions to kick off with strongly held beliefs, with some more cautious students holding back.

    The comments from POTUS and others would then provide deeper examination of overt and contextual aspects.

    Moral considerations will have their place. I ofter refer to Susan Sucher’s work, and chapter 9, Ethical Dilemmas, (Rickards, 2015, Dilemmas of leadership, 3rd edn.)
    I would also like to encourage situating it in the student/executive experience asking ‘what would you do, and why’).

    I would resist offering my own views at the time, but would provide them later, after any assessed work is completed.

    Thanks for helping me think this through a little more carefully.

    TR

  4. I would say yes. Larger corporations invest in diversity programs for their employees to combat ignorance, bigotry and racism. If there is no way to change an employee’s mind then they must remain closet racists if they want to stay employed. I believe that many large corporations themselves, if they have a diverse workforce, can be a huge catalyst in breaking down prejudice and fighting ignorance. These are certainly trying times for our nation. We need a Martin Luther King now. I admire the CEO’s who have left the POTUS’s administration in protest.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: