August 14, 2017 by Jon Hyman, partner at Meyers Roman Friedberg & Lewis and blogger at Ohio Employer’s Law Blog.
In the wake of Friday and Saturday’s horrific, evil events in Charlottesville, the twitter account YesYoureRacist posted many riot photos and identified many of the rioters. And, as a result, some have lost their jobs.
UPDATE: Cole White, the first person I exposed, no longer has a job 💁♂️ #GoodNightColeWhite#ExposeTheAltRight#Charlottesville
— Yes, You’re Racist (@YesYoureRacist) August 13, 2017
Question: Does one participating in a Nazi rally enjoy any job protections from said participation?
Answer: Absolutely not.
“But Jon,” you ask, “just six months ago you told us that the National Labor Relations Act protects individuals’ political advocacy during the their own time in non-work areas? What gives?”
What gives is that you missed the key first part of this standard—the political advocacy must be non-disruptive. There was absolutely nothing “non-disruptive” about what happened in Charlottesville. In fact, it was the very definition of disruptive.
Thus, even if Mr. White (really his name) could argue that the protest was “for or against a specific issue related to a specifically identified employment concern,” (and I would strongly argue that racial purity is not such an issue, see Title VII), the violent and disruptive nature of the protest removes all hope he and anyone else at the rally could hold for any employment protections.
Mr. White absolutely has the constitutional right to hold whatever opinion he wants to hold. And he even has the constitutional right to peacefully express those opinions, no matter how vehemently one might disagree with his point of view. Those rights are what make America great. Those constitutional rights, however, stop at a private employer’s door. And I, as a private employer, have the right to hold my employees accountable for their viewpoints and terminate when I, in good faith, determine that those viewpoints may bleed into my workplace and create a hostile environment for other employees. I certainly have the right to fire when those viewpoints cross the line into violence or threats of violence. [. . .]
[W]hat kind of employer am I if I ignore an employee’s role in what happened over the weekend? What message does it send to my minority employees, my Jewish employees, my Muslim employees, my anyone-but-alt-right employees (not to mention my Title VII obligations to provide a workplace free from racial and religious harassment)?
Silence in the wake of hate at best condones the hate, and at worst participates in it. If it’s my business, I choose not to stay silent.