YES! Yes you can. But proceed with caution.
The news out of Charlottesville is disheartening and tragic. While the physical and emotional wounds may heal over time, the stain of racism persists leaving many to question what they can do and how they should respond. This includes employers who feel that employees who affiliate themselves with racist or other controversial positions/movements can negatively impact the company by hurting productivity or tainting their brand. I’ve included a link to an article in The Atlantic below dealing with a movement to expose employees who were involved in this event and exert pressure on employers to fire them. In this post I will review some of the considerations when it comes to responding to employee’s political views and activities. First let me point out that I am addressing private employers only, there are different rules in the public sector. Also, there are special considerations with regard to political activity if you live in California, Colorado, New York, North Dakota or Washington DC. Those states (and a district) have laws specifically related to employment action based on Political Affiliation or Political Activity. In every other state the At-Will-Employment doctrine would apply. Having said that, here are some questions to ask yourself before walking your employee out.
Request A Free Termination Consultation
1) Is there a legitimate business reason for your decision? Simply firing someone because you disagree with them, while possibly legal, may have other negative impacts on your business like reduced morale, lower productivity, difficulty recruiting, etc.
2) Would you take this action if the employee involved was your best employee? All things being equal, consistency is a great defense against a claim of discrimination. Be sure that the precedent you set with a termination decision is something you would be happy to apply even if your best employee were involved.
3) Might their expression be considered “protected concerted activity”? If an employee raises their political view, or participates in a political activity in the context of a complaint related to their compensation, benefits or other terms and conditions of employment then that may be protected under the National Labor Relations Act. In that case, terminating the employee may be unlawful.
4) Is there anything else going on with this employee? If an employee has filed an EEOC complaint against the company, is out on FMLA leave, has engaged in union organizing activity or is in some other way “protected” from retaliation you are still within your rights as an employer to hold them accountable for performance and take other actions which are in no way motivated by those factors. However, the appearance of retaliation may be all that’s needed to motivate the employee to file a charge which you must then defend.
5) Does your employee handbook limit your options? If your employee handbook guarantees a progressive disciplinary process, or states that terminations must be “for cause” then you may need to follow that process before making the decision to terminate.
Let me stress that I am not an attorney and this is not intended as legal advice. I personally have no problem employing and working with people with whom I disagree. However, there are some beliefs which are so far beyond the pale that I would not stand for them and would quickly remove those who subscribe to them from my business. Overt racism is one of those and it is my opinion that firing a racist will make my business stronger. If you find you are in a position to make that decision review these questions, seek legal counsel if there are any sticking points and then proceed with confidence.
The Atlantic, August 14, 2017
Is being a White Supremacist Grounds for FiringRead the Artcle