Editor’s Note: The legal world was shocked recently when City Pages reported that Patterson Thuente Pederson partner Aaron Davis was also the owner of Behold Barbarity records, which it described as a “virtual vault of neo-Nazi tunes.” It also reported that Behold Barbarity is among the organizations on the Southern Poverty Law Center’s most recent list of active hate groups. City Pages also reported that the law firm issued the following statement: “Aaron Davis is no longer employed by Patterson Thuente Pedersen, P.A. Prior to the story, no one in the firm had any inclination regarding the allegations in the article.”
A human resources department in corporate America would be highly unlikely to sit back while an employee displayed swastikas on his desk or espoused ideas about racial superiority at the coffee machine. Outside of the office, however, the relationship between corporate codes of conduct and hateful politics is less straightforward. It’s not entirely clear that employees will always be fired for being an after-hours Nazi.
Take the recent white-nationalists rallies in Charlottesville, Virginia, which featured anti-Semitic slogans, Nazi symbols, and an attack on counter-protesters that left one person dead. At least four participants in the rallies have lost their jobs as a result.
Using images of the Charlottesville marches, amateur investigators such as Logan Smith, who runs the Twitter account “Yes, You’re a Racist,” have exposed the identities of participants and, in some cases, their places of employment. Within a week, several of those identified had reportedly lost jobs over conduct that took place far from their workplaces.
Not all employees are equally vulnerable.
Public-sector employees have the most protections, even for what might be deemed out-of-office hate speech, thanks to the restrictions of the First Amendment on government action. That doesn’t mean that someone employed by a public institution can say whatever he wants without any consequences. If a government employer can prove that an employee’s actions are an “issue of public concern,” there may be a case for termination, said Jonathan Segal, an employment lawyer at Duane Morris. He suggested, as an example, that a police officer who is part of a white nationalist group might lose his job. (This happened in 2015 when two Alabama police officers lost their jobs for belonging to a white nationalist group.)
Private-sector employees have fewer protections, unless working under a contract that explicitly states otherwise. Union contracts often require an employer to demonstrate “just cause” for firing an employee, and Segal said that behavior outside of work alone won’t always suffice. An employer would have to prove that the activity somehow affects the workplace or the worker’s ability to do his job. If a member of a white supremacist group acts as a company representative as part of his job, for example, the employer might reasonably allege that the organization’s reputation would be tainted by association. Other workers could also potentially complain of a hostile work environment.
Most people employed in the private sector have less generous “at-will” employment contracts. “That means they can be fired for any reason — as long as it isn’t an illegal reason,” said Elizabeth Owens Bille, the general counsel for the Society for Human Resource Management. And firing someone for attending a Nazi rally is potentially illegal, depending on the state.
About half of U.S. states have laws that prohibit firing workers based on their off-duty conduct, although these protections vary widely. In South Carolina, where Nick Krofta lost his job after appearing in a picture at the Charlottesville rally, a single activity, such as smoking, might be protected in the law. Other states — California, Colorado, New York, and North Dakota — specify that employers can’t fire workers for participating in “lawful activities,” including political protests.
Even in those states where the law protects employees who attend a march, companies can still defend firing a white supremacist other ways. ”If they’re screaming comments about Jews, gays, and Muslims, I believe a good argument is that you’re not responding to the political activity,” said Segal. “You’re responding to the content of what is said — the hate speech, not the march.” Unlike government employees, private-sector workers don’t have First Amendment rights on the job. Some states have laws that prohibit firing workers based on political speech, but Segal says those laws are generally narrow.
In states without these “off-duty” protections, it’s not difficult for companies to fire at-will employees who participate in white supremacist rallies — or any other off-hours behavior deemed unsavory. ”It is perfectly OK to terminate somebody,” said Jay Starkman, chief executive of Engage, which provides HR services for small and midsize companies. “The reason for the termination is that it doesn’t reflect the values of the organization.”
Social media posts can also get a worker fired, even for stuff not posted at work. Many companies have policies about what their workers can and can’t post online. Any content that’s inconsistent with the company’s antidiscrimination policy can get an employee fired.
White supremacists in the workplace are problems for their employers. They can tarnish the reputation of an organization, create a hostile work environment for nonwhite workers, and counteract diversity and inclusion initiatives. Still, companies don’t want to chill employees into thinking that they can get fired for anything they do on their own time.
“You don’t want this to be political, you want it to be a decency vs. hatred issue,” said Segal. ”So people don’t think they can’t have different political views, even where that wouldn’t be protected.”