Alison Rapp, a product marketing specialist at Nintendo, has been fired after protests from gamers, parents, and anti-child-abuse activists drew attention to a paper she wrote in college. The essay, which can be found on her LinkedIn profile, is titled, "Speech We Hate: An Argument for the Cessation of International Pressure on Japan to Strengthen Its Anti-Child Pornography Laws" and argues for the legalization of child pornography.
Jamie Walton, president of the Wayne Foundation, a non-profit organization that fights sex trafficking, contacted Nintendo to complain about Rapp. She was then terminated, which created even more controversy, with people jumping in to argue that her dismissal was sexist ("She was fired for doing literally nothing other than being a woman") to completely justified ("Nintendo was absolutely right to fire pedophile advocate, Alison Rapp").
"However lascivious, not all information correlates to an employee's ability to do the job for which she is hired," said Nonnie Shivers, an attorney in the Phoenix office of Ogletree Deakins, one of the best law firms in the country. Shivers' expertise is litigation avoidance through counseling and training: She regularly speaks on diversity and inclusion in the workplace, covering such issues as transgender transitioning, sexual harassment, and pay discrimination.
"Some information may be ripe for gossip and judgment, but simply not reflect on the employee's current ability to exercise good judgment in the course and scope of her duties," said Shivers. "Employers should generally ask themselves if the information probe is job-related and consistent with business necessity and whether the information is probative of ability to perform the job. If an employee opposes paying taxes and refuses to pay personal income tax as a personal stance, does that illegal act impact their job performance? Does that change if your company is subject to a tax lien because of the employee's protesting acts?"
However, Nintendo may have fired Rapp for a completely different reason than her academic defense of child pornography. According to Rapp, she was moonlighting under a different name in order to pay her student loans. Nintendo's public statement says that Rapp wasn't fired for moonlighting, but because her second job was "in conflict with [their] culture" [a reference made to online allegations made about Rapp by male critics -- Editor]. The Washington Post has reported on the "oppo research" that was done on Rapp by "self-styled investigators," [and put the allegations in the post-Gamergate context of the widespread online harassment targeting many women--Editor].
"The laws generally do not prohibit an employer from terminating employees for reasons that are not illegal, even if it goes to someone's likability or other non-protected characteristics," said Shivers. "The law in different parts of the country varies, however. For instance, in some circuits, an employer's right to discipline employees is confined to work-related matters and an employer should be prepared to show a connection between the alleged conduct and a detrimental impact or effect on its business, especially when dealing when the public sector."
I contacted Rapp multiple times to give her an opportunity to confirm or deny these allegations, or provide context for her essay. She refused to answer any of my questions, and then promptly blocked me on Twitter and Facebook.