The recent tragic events in Charlottesville, Virginia and other news regarding the activities of white supremacists and similar groups, have served as a rude awakening for many that our national reality has shifted. These events, which occurred in the public square and have been widely documented through social media, are unfortunate examples of bigoted and discriminatory viewpoints being expressed openly. Setting aside the larger political debate that these events have stirred, these developments raise a plethora of thorny issues for employers.
Employers are justifiably concerned about finding themselves saddled with an employee who openly expresses bigoted views—either in the workplace or on the street. Participants in Charlottesville’s “Unite the Right” rally have been identified in social media, resulting in the highly publicized firing of Cole White from his job at a Berkeley, California restaurant. This came on the heels of Google’s firing of James Damore for circulating a memo containing controversial views about gender and diversity.
Knowingly continuing to employ individuals with racist or discriminatory views could expose employers to discrimination and harassment claims by other employees. Open expression of racist or other bigoted views in the workplace could give rise to harassment and hostile work environment claims. Moreover, the open expression of bigoted views outside the workplace may potentially be used as evidence of discrimination, if the person expressing such views participates in a challenged employment decision, or influences an employment decision through the “cat’s paw” principle.
Except in a handful of jurisdictions, no law prevents the firing of a private sector at-will employee on the basis of his or her speech or political views. Nor does the First Amendment apply to private employers. If the political activity is intertwined with advocacy for labor issues (such as the minimum wage or collective bargaining rights) it could be protected under the National Labor Relations Act. However, in most cases, expressions of discriminatory viewpoints are not entitled to legal protection.
Even in the absence of legal protections for employee free speech or political activity, an ounce of prevention is still worth a pound of cure. Employers should review their personnel manuals, employee handbooks, and technology-use and social media policies to ensure that employees are on notice that their actions and statements outside of work can reflect on the employer’s public image; and that therefore, the expression of bigoted, harassing, or discriminatory views may result in termination even if it occurs during an employee’s private time and off of employer property. Employees should further be warned that use of the employer’s computer systems to view or transmit bigoted propaganda is forbidden.
Further, employers who have not conducted workplace harassment training in the past year should consider doing so as soon as possible.
This training should emphasize the fact that illegal workplace harassment includes not only sexual harassment, but also harassment on the basis of any protected category in the employer’s jurisdiction (including, in many jurisdictions, sexual orientation and gender identity). Training should also emphasize the employer’s complaint process, and that retaliation against any complaining employee is prohibited. Clear policies, thorough training, and robust harassment investigation procedures are important tools, both to reduce the risk of liability and to reaffirm the employer’s commitment to maintaining a work environment that is respectful and inclusive of diversity in today’s charged environment.
Andrew J. Horowitz is an attorney in Obermayer’s Pittsburgh Office, practicing in the areas of general and complex litigation and employment law matters. He can be reached at 412-288-2461 or Andrew.Horowitz@obermayer.com.