We live in an unfortunate time in which white nationalists and neo-Nazis are receiving a great amount of publicity. In the aftermath of this month's events in Charlottesville, Virginia we are likely to see additional rallies, in which designated hate groups participate, as well as counter-protests.
What can an employer do if it learns that one of its employees is a neo-Nazi or has attended a rally alongside members of the KKK or similar groups? It depends. Employers must be careful to consider the laws of their jurisdiction and the particular facts and circumstances before terminating or disciplining an employee because of their participation in or association with certain groups.
If an employee spews messages of hate to co-workers or openly displays or distributes swastikas or other racist propaganda in the workplace, most private employers would have legitimate grounds to terminate the employee. In fact, failing to take action to prohibit such conduct or even continuing to retain that employee, could subject the employer to claims of workplace harassment or discrimination by those that find the conduct offensive.
But, what if an employee simply attends a neo-Nazi rally outside of work? Whether an employer can terminate an individual just because the employee holds discriminatory views outside of work depends entirely on the jurisdiction and the particular circumstances.
For instance, a public-sector employee is covered by the First Amendment and the employer may not be able to take action against the employee for his/her speech or conduct outside of the workplace. At a minimum, public sector employees will generally have due process protections that must be considered prior to employment action
On the other hand, private sector employees have fewer protections. Absent an employment agreement stating otherwise, the general practice and default rule for most non-unionized, private employers in the United States is at-will employment. This means that the employee is free to resign at any time, with or without notice or cause. This also means that the employer may terminate an employee at any time, with or without notice or cause. Notwithstanding the foregoing, employers often mistakenly believe that at-will employment allows them to terminate anyone for any reason whatsoever. This assumption is false because it ignores basic anti-discrimination laws and other legal limits on discharging employees based on their legally protected characteristics such as race, color, national origin, religion, sex, disability, etc.
If an employer is in an at-will state that contains no other protections for off-duty conduct, an employer may be able to terminate an employee who attends a neo-Nazi rally so long as the decision to terminate was not based on any other legally applicable protected characteristics. However, even in such jurisdictions, the employee could try to defend his/her racist conduct and bring a claim for wrongful termination on the ground that the termination was based on his/her white race and involved protected speech/conduct about his/her white race.
In addition, numerous states provide protections to employees for lawful off-duty conduct or political affiliations. In such jurisdictions, the employer would have a difficult time terminating an employee for simply attending a lawful rally. The National Labor Relations Board may also provide certain protections to an employee if the employee can somehow argue that the racist conduct or speech was related to terms and conditions of his/her employment.
In light of these various issues, employers should be cautious in taking disciplinary action against an employee, when the employee's actions have not somehow implicated the employer or directly affected the employer's reputation. However, an employer may also be able to act if the employee's behavior and views have resulted in a hostile work environment for other co-workers.
These issues are fraught with a variety of landmines for employers, both legal and otherwise. Under these circumstances, employers should consult with labor counsel to ensure compliance with all applicable laws in the jurisdiction before taking action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.