While some employees went fishing over the weekend or did chores around the house, a few apparently travelled to Charlottesville, VA to participate in the “Unite the Right” demonstration that attracted groups identified with White Nationalism and the so-called Alt-Right.
After video was posted of the violent confrontation between demonstrators and counter protesters, social media was buzzing with attempts to identify the demonstrators. With astonishing speed, a number of rally participants were identified by name, hometown and in some cases, their place of employment. Almost immediately thereafter, one of the demonstrators was out of a job following a resignation where there was probably more to the story that what has been published.
Free Speech?
As more of the rally demonstrators are “outted”, we likely will see more efforts to urge and/or publicly shame their employers to fire them. Would such terminations be legal? We think so.
The starting point in such matters is the First Amendment of the Constitution, an argument that can be dispensed with rather quickly. While participating in the “Unite the Right” march could be seen as political speech, employees in the private sector do not have a constitutionally protected right of free speech. The First Amendment only protects against government’s enactment of laws abridging free speech.
Therefore, private employers would not be prohibited from basing termination decisions or other adverse employment actions on an employee’s expression of political beliefs, even those made outside the workforce. For public employers, the result would likely be very different since they are in fact impacted by constitutional restrictions.
Religious Discrimination?
What about Title VII and corresponding state laws that protect against discrimination based on race, color, creed, sex, religion, national origin, age, disability, etc.? In the wake of the Charlottesville events, some people are advancing the idea that terminating a Unite the Right demonstrator would be discrimination based on the employee’s religious beliefs.
This argument actually was addressed and rejected in the courts many years ago. In the heyday of the Civil Rights movement, an employee sued his employer alleging that his termination based on membership in the Ku Klux Klan was discrimination based on religion. The federal Fourth Circuit Court of Appeals rejected the claim, concluding that the KKK was not a religious organization but rather, an organization with a belief system whose “proclaimed racist and anti-semitic ideology” was “inconsistent with the meaning of ‘religion’” under Title VII.
Therefore, a court would probably rule that regardless of how sincerely the demonstrators believed in the cause of White Nationalism (or White Supremacy, the Alt-Right, or other labels that have been applied to the demonstrators’ philosophies), their cause did not rise to the level of a religious belief system and they therefore would not be protected under Title VII.
Moreover, even if the demonstrators’ political idea were protected, it seems plausible that the employer could still take legitimate action against an employee who engaged in violence at the event. The termination would be based on the employee’s behavior and not on religious beliefs or expression of those beliefs.
But Be Careful
Of course, even if termination is lawful, an employer must be careful that they have their facts straight (as you should in all terminations).
There have been reports of participants in the demonstration having been wrongfully identified. Terminating an employee for the mistaken belief that the individual participated in White Nationalist activities could result in a defamation claim.
Bottom Line
The enormous power of social media has been marshalled in pursuit of making last weekend’s Unite the Right demonstrators suffer employment-related consequences for their actions. If that effort is successful, it is likely that the demonstrators will not have much legal recourse.