I’ve received several questions this week about whether an employer can fire an employee because he or she participated in a protest as a member of a hate group like the white supremacists and neo Nazis in Charlottesville last weekend. Each time I’ve said, “Yes, in my opinion employers generally can and should fire such employees.”
I was surprised to find that there is a good bit of controversy about this issue. (See the article here). So I called a lawyer friend whose practice consists entirely of defending employers. He seemed to think employers should be hesitant to fire employees because of their “political beliefs.” I told him to grow a pair.
To me, it’s a simple matter of basic right and wrong -- white supremacists and neo-Nazis have no place in the modern American workplace. Theirs are not “political beliefs,” but rather hideous statements of hostility and animus towards racial and religious minorities. For anyone not sufficiently moved by the moral repugnance of their message (a fact that I find depressing), consider the potential liability to other employees created by continuing to employ an avowed white supremacist. Can you say hostile environment?
Sexual harassment is not the only claim that can be brought under a hostile environment theory. Plenty of successful claims have been brought for racially and religiously hostile work environments. Employers that act promptly to end a co-worker created hostile environment can try to avoid or minimize liability, but those that allow a hostile environment to persist after learning of it face major exposure. So retaining a neo Nazi as an employee in deference to his “political beliefs” could easily end up costing the employer a major judgment, not to mention the scorn and ridicule of employees and the public and the associated loss of business.
In fairness, my friend had a decent basic point, employers should think carefully about employment decisions. They can have consequences and lead to significant liability. And there are a few instances where firing an employee for engaging in hate speech could raise concerns. Public employers cannot generally retaliate against employees for engaging in First Amendment protected activity, although there are plenty of exceptions to this general rule. Likewise, “just cause” is generally required to fire an employee protected by a union contract. And in non-union shops, employees still have the right to engage in concerted protected activity by meeting and talking about wages and other conditions of employment.
But in the end this is an easy question. The First Amendment does not protect employees of private businesses from being disciplined. And while some states have enacted laws protecting against political discrimination, Ohio has not. (The closest we have is ORC 3599.05 that prohibits employers from threatening to shut down part or all of their business if a particular candidate is elected or defeated). Hate speech like what we all saw in Charlottesville would violate any reasonably drafted good conduct clause. Employers should stand up for the principles of diversity and equal opportunity that they tout in mission statements and handbooks. Retaining employees who publicly espouse views antithetical to such principles renders them nothing more than hollow pronouncements.
Could an employer end up facing a claim for such a termination? Of course, but that does not mean the claim will be successful. With a modicum of forethought (i.e., an investigation confirming that the employee was not an innocent bystander but in fact actively involved in a protest espousing racial hatred – social media is great for this) an employer should be in a position to terminate an at will employee with a reasonable degree of confidence. After all, the KKK may have a right to march in the street, but its members aren’t entitled to their jobs.
Written content provided by attorney Christian Jenkins