In the days and weeks following the shocking white supremacist rally in Charlottesville, Virginia, numerous names and faces of participants have been publicized by mainstream media. Employers, colleagues, classmates, friends and even family members may now be appalled to know that they are associated with a publicly recognized racist. Some employers have reacted quickly, terminating employees who showed up at the rally, hoping to distance their businesses from such individuals and their views. But can an employer legally fire someone for being a white supremacist?
Several legal considerations become relevant when attempting to answer this question. Generally, a private employer has the right to terminate an at-will employee for any reason, including non-work-related activities, as long as it’s not for a reason protected by law (race, sex, religious beliefs, age, national origin, disability and pregnancy status). For example, an employer can typically fire someone for allegedly driving drunk and being charged with DUI. However, other factors may come into play that can make these situations far from cut-and-dry. For example:
- Unions: A collective bargaining agreement between a company and members of a trade union may contain unique stipulations that prevent an employer from terminating an employee for off-site conduct.
- The public sector: This is where the First Amendment may offer protection from termination. Public-sector employees can typically speak out in public about issues not related to their work, regardless of the subject matter, without putting themselves at risk of losing their jobs.
- Employment clauses: Similar to a collective bargaining agreement, specific clauses in an employment agreement might make it illegal for a company to fire someone for non-work-related conduct.
- State laws: A few states, including New York and California, prohibit disciplinary action against employees for making political statements outside of the workplace. However, employers have some leverage if they can show that an employee’s beliefs or actions prevent them from performing their job effectively.
Since the Charlottesville rally, there have been many counter-demonstrations and protests throughout the country. It is important to note that in most states, companies can also terminate private-sector employees for taking part in these activities (regardless of the participants’ good intentions). If you plan to take part in any type of public activity of this nature, you should consider whether your employer would approve and if you could be putting your job at risk.