By Kathleen Jennings (email@example.com)
This past weekend, an alt-right rally in Charlottesville, VA featured numerous men (and some women) wearing white hoods, Nazi symbols, and other symbols of what they considered “white pride.” Many others consider these symbols of racial hatred, and there was a movement on social media to identify some of the attendees of the rally and ask their employers to fire them. Of course, that piqued the interest of this employment lawyer.
Can an employer fire an employee for posing with a Nazi symbol or other expression of racial and/or religious animosity? Even though this behavior occurred outside the workplace?
In an at-will employment state such as Georgia, a private employer can terminate an employee who does not have a written contract of employment at any time, for any reason, or no reason at all. So the answer is Yes. This power to terminate is limited by federal law, which means that an employment decision should not violate federal anti-discrimination laws (which generally apply to employers with 15 or more employees). In the case of the employee posing with the Nazi symbol, he will be hard-pressed to a show that his termination is motivated by discrimination. To show discrimination, he would need to show that similarly situated (i.e., posing with a known symbol of racial animosity) non-white employees were not terminated. The answer is still Yes.
Should an employer fire an employee for posing with a Nazi symbol? If the employee is a supervisor or manager, the answer is Absolutely Yes. That picture will forever carry a taint of racial animus that will affect any employment decision that the employee makes, including any decisions in his chain of command, and that taint will be imputed to the company.
If the employee is not a supervisor or manager, the answer is slightly less definitive. Has this employee shown any discriminatory attitudes or beliefs in the workplace? Has he had conflicts with other employees? Are other employees aware of his beliefs, and does that cause disruption in the workplace? Are others likely to associate this employee’s beliefs with the company? If the answer to any of these questions is yes, then he probably needs to go.
If the employer decides not to terminate the employee, it needs to set some ground rules. First, there needs to be a documented conversation with the employee about the company’s EEO policy and a reaffirmation that the company will not tolerate discrimination. Second, the employee needs to be made aware that he will not be considered for any supervisory or managerial positions. If the employee shows any resistance to either of these concepts, then it is not a good idea to keep him around.
Finally, there is no First Amendment “right to free speech” in a private (non-government) workplace. That means an employee may have to choose between posing with a Nazi symbol and keeping his job.
Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at firstname.lastname@example.org.
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