Can an employee be fired or not hired for engaging in a lawful assembly?

August 28, 2017

Can you deny employment and/or fire white supremacists — or anyone engaging in a lawful assembly?

First Amendment speech protections do not apply to the private workplace. Therefore, private-sector employers are free to take action so long as the decisions are consistent and non-discriminatory. Employers question whether they can take action against individuals who, while lawfully assembling, promote ideas and thoughts that may be contrary to the company’s mission or values.

The question is front and center after this past weekend’s rallies in Charlottesville, Richmond and elsewhere. Pictures and videos of individuals, some of whom were holding Nazi-symbol flags, were printed in newspapers and posted online.

 Can an individual be fired or denied employment for engaging in a lawful assembly?

In today’s workplace, the bigger question is whether employees can have a personal life and an entirely separate work life.

What if your employee, or job applicant, is one of the men pictured at the rally on the front page of the newspaper?

What if, when asked, the person states he was simply protesting the removal of a historical statue, but disagreed with the others who assembled to spew beliefs of the Ku Klux Klan, neo-Nazis and white supremacists and states he is not a racist? Does that make a difference, or is he guilty by association?

What if two co-workers saw each other at the rally — one part of the Unite the Right assembly and the other as part of the counterprotesters — and now refuse to work together? What if a photograph of the counterprotester initiating violence was in the newspaper?

And to add to the complexity, what if another employee was seen at the subsequent rally in Richmond where some of the protesters reportedly yelled, “Cops and the Klan go hand in hand.”

To be consistent, employers need to ask themselves if any or all these behaviors warrant action by the employer because it violates a company policy or the employee’s out-of-the-office behavior has caused too much internal disruption.

As with the issue of social media, the First Amendment does not bar private employers from taking employment action based on “assembly” unless that decision-making is discriminatory.

The difficult part of this equation is whether or not terminating one of these individuals who assembled in Charlottesville or Richmond can amount to race discrimination or some other discrimination.

An employer may be charged with discrimination if the business terminated the white supremacists but not a non-white or female who was spewing hate to police officers or initiating violence. Some believe those offenses are equal; others disagree.

One employee reportedly already has lost his job at a hot dog restaurant in Berkeley, Calif., after Twitter users posted his photo among those shouting and wielding torches during Friday night’s march on the University of Virginia’s campus, according to The Washington Post.

Cole White, who attended the rally, worked for Top Dog until the restaurant was inundated with messages about White’s rally attendance. Top Dog promptly notified its customers that he is no longer employed, although it said it accepted his resignation and he was not terminated, the Post reported.

We live in a divisive and complicated environment, and there are no clear answers. However, employees must know that if their outside activities infiltrate the workplace and make it difficult for them to be successful, they might not be able to work there anymore — and their termination most likely will be lawful, assuming the employer consistently applies its policies.

Employers need to resist making assumptions or only finding offense with certain hateful behaviors and not all.

For example, several employers were questioned by male and female employees who strongly objected to co-workers’ admitted participation in the women’s march after President Donald Trump’s inauguration by wearing pink hats and holding banners proclaiming the power of women and spewing what many viewed as hateful and divisive rhetoric.

Employees returning to the workplace following the rally may be equally divisive to someone assembling in favor of keeping the Robert E. Lee statue on Monument Avenue with the women being perceived as hostile.

We, as Americans, have a right to rally, protest and assemble peacefully.

However, just because we have the right, doesn’t mean there won’t be consequences at work.

Employers should try to avoid conflating outside private activities with the workplace. But when those activities commingle to the point of negatively impacting the workplace, unfortunately tough decisions will have to be made.

Employers should use rational thinking and make consistent decisions.

There should be no dispute, however, that if someone at work is an admitted racist through his or her activities outside of work, that person is largely unemployable and must go.