By Mark F. Kluger and William H. Healey
Almost immediately after the events in Charlottesville, the Twitter feed, @YesYoureRacist, which has been around since 2012, changed its mission from poking fun at racists to publicly out those who attended the events as part of Nazi, Klan and Alt-Right groups. Followers of the Twitter account, adorned with hashtags such as #BashTheFash and #GoodNightAltRight, surged to over 400,000 once it made this request: If you recognize any of the Nazi’s marching in #Charlottesville, send me their names/profiles and I’ll make them famous.
While only a hand-full of the participants have been positively identified on the Twitter feed, in the ensuing days, at least 4 are no longer employed as a result. A Berkeley California hot dog restaurant employee’s picture, name and place of employment raced through social media the day after the event and by Monday, the employer had posted a sign in front of the establishment stating that the employee no longer worked there and that the restaurant did not support his actions in Charlottesville. On social media, the employer emphasized that the employee resigned.
A few days later, Uno Pizzeria & Grill announced that it had terminated a chef from one of its Vermont locations due to his participation in the rally and his identification by @YesYoureRacist. The feed included a picture of the pizza chef holding his baby and stated: “He works at Uno’s and brought his baby cuz you’re never too young to be a nazi.” When asked what he was going to do now that he has lost his job, the former employee said he would continue to sing in his band aptly named, Hate Speech. You just can’t make up this stuff.
Later in the week, Mojo Burrito, located in St. Elmo, Tennessee, fired an employee whose picture appeared on the Twitter feed. We just could not get St. Elmo next to fire, but we tried. So what’s up with all the Nazi restaurant workers? At least the fourth reported loss of employment was a welder/mechanic terminated from a Charleston, South Carolina company, Limehouse & Sons, Inc., which posted a disclaimer on its social media accounts stating that it terminated the employee and does not condone the actions of those in Charlottesville.
In most states, it is perfectly legal for private sector employers to terminate at-will employees for their off duty conduct, such as participation in Nazi and Klan activities or their political views, so long as not based on membership in a protected class. The First Amendment protects free speech rights only against government interference, although police officers have been terminated for public expression of racist views because the danger posed by openly racist officers outweighs First Amendment rights. Keep in mind that an employer who is unhappy that an employee participated in the Charlottesville counter-protests can also terminate for that reason; though an employee fired on that basis might have some shot at a claim, particularly if a member of a protected class. It is also important to know that at least two individuals were mistakenly identified on the Twitter account and although later corrected, at least some of the reputational damage may be irreparable.
These events make clear the importance of employers having a comprehensive written policy that prohibits the creation of a hostile work environment based on legally protected characteristics. Such a policy can be the basis for removing an openly racist employee from the workplace even if the only evidence of those views is participation in a Charlottesville-like event. In fact, a few weeks ago, Google relied on its anti-discrimination policy to terminate an engineer that distributed an internal memo espousing his view that Google was intolerant of conservative views and describing his theories as to why women did not advance in the tech fields. The now unemployed engineer wrote that biological causes…may explain why we don’t see equal representation of women in tech and leadership. The writer, clearly determined to commit career and probably relationship suicide, continued explaining that these biological differences leads to women generally having a harder time negotiating salary, asking for raises, speaking up and leading. He added that women are also held back by higher anxiety and lower stress tolerance. In terminating the employee for publically expressing his views, Google stated that the memo advanc[ed] harmful gender stereotypes in our workplace and as a result violated its code of conduct. Silver lining for the Google engineer: there is an opening at a hot dog shop in Berkeley and a few other restaurants if he wants to relocate, which might not be a bad idea.
In several states, there is at least one roadblock to terminations based on participation in and opposition to hate groups. New York, California, Colorado, North Dakota and Louisiana have lifestyle discrimination laws that protect employees from retaliation for engaging in political activities and other lawful off-duty conduct. While many other states have lifestyle discrimination laws, which believe it or not were originally written to protect smokers from being fired or not hired because of the potential impact on health insurance rates, only those few states have protection based on political activities. As a result, most private sector employers are thankfully free to terminate their Nazis employees. One potential outcome: To avoid such Twitter feeds, the hoods may be back in vogue at the next rally.