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Legal experts say the decision should be based on case-by-case determinations
When one of an employer's workers participates in a hate group's activities, such as the white nationalist rally that occurred in Charlottesville, Va., on Aug. 12, what are the employer's rights under the law to terminate that employee? One rally participant has lost his job after pictures of him marching in the rally were posted on social media.
The answer is surprisingly unclear, according to management attorneys, who recommend a case-by-case inquiry depending partly on the state where the worker is employed, how risk-averse the company is and whether workplace policies have been violated.
Termination Fine Under Federal Law
No federal law would be violated in firing the worker, noted Michael Eastman, an attorney with the Center for Workplace Compliance (formerly the Equal Employment Advisory Council) in Washington, D.C.
Some members of the Ku Klux Klan (KKK) claim that participation in the KKK is religious activity that must be accommodated under Title VII of the Civil Rights Act of 1964, he said, but courts have rejected that.
The First Amendment's protections of freedom of speech apply only to the government, not to private employers. Private-sector employers do not have to allow employees to voice beliefs other workers may find offensive. But government employers may not be able to fire employees who participated in protests.
State Law Obstacles to Discharge
Employment is at will in general, and employees can be terminated for any reason as long as it is not an unlawful reason, he noted.
In some states, employers are prohibited from discriminating against employees for engaging in lawful conduct when they are off duty. These laws are typically referred to as lifestyle discrimination statutes and usually prohibit discrimination based on smoking. But some of the laws—such as those in California, Colorado, New York and North Dakota, according to the National Conference of State Legislatures—prohibit discrimination based on off-duty activities more generally. If that law is in place in an employer's state, the employer's analysis of whether to fire someone will have to be more thorough, Eastman said.
Some employers will choose to fire a worker anyway and are willing to take that risk given the issues involved, he noted, particularly if the off-duty activity contravenes an employer's workplace policies. For example, an employer may rely on its nonharassment policy in terminating a worker who is holding signs or chanting slogans, even offsite, that might be offensive.
Employment policies do not always stop at the office door, he noted. A nonharassment policy, for example, may be applied to workers away from the office who are at a conference if one sexually harasses another.
Offsite protests may be one more step removed, but if pictures of an employee's participation in white nationalist rallies are circulating the office, for example, that could lead to tensions and problems in the workplace in violation of the policy. And if a white nationalist is a manager and an employee files an equal employment opportunity claim based on the manager's treatment of him or her, defending the claim may prove difficult.
'Tough Political Question'
Barry Hartstein, an attorney with Littler in Chicago, said whether to fire a white nationalist is a "tough political question." He said the decision is akin to an announcement by a company president in Chicago that he was considering firing anyone who voted for President Donald Trump.
Hartstein recommended that employers focus on conduct in the workplace and evaluate each individual on a case-by-case basis. An employer has the right to expect that when an employee is in the workplace, he or she will contribute to an environment of mutual respect. "If someone is not acting in concert with that, that person may not belong."
Customer preference is a slippery slope with equal employment opportunity laws, he noted.
[SHRM members-only toolkit: Managing Equal Employment Opportunity]
If customers do not want to deal with Hispanic or black employees, employers typically ignore such customer preferences.
By contrast, when dealing with employees who have extreme political views that customers oppose, "it's more emotional and a tough call, but look at it on a case-by-case basis," he recommended. Consider the impact on the business for not firing the employee with extremist views. "How risk-averse are you?" Hartstein asked. "Are you better off without the employee? Is it worth the risk of being sued?"
Depending on the company's answers to these questions, termination might be a viable option.
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