Over the weekend, a group of white nationalists held a march to protest the removal of a Civil War statue in Charlottesville, Virginia. Protesters from Antifa and Black Lives Matter showed up in a counterprotest and violence broke out, resulting in one death, when a driver rammed his car into the crowd of counterprotesters.

A Twitter account, "Yes, You're Racist," is working to uncover the identity of the white nationalist protesters. The goal is to notify employers and schools so that the protesters face consequences at work and at school.

So, let's say you come into the office this morning to find out that one of your employees was part of the white nationalist group. Can you fire him (and from the pictures, it appears to be a male thing), and should you? (These are often two different questions.) Well, the answer is, it depends.

Are you sure he's a racist?

It may seem obvious--he was at the protest, and he's a white guy, so yes, racist. But you shouldn't trust an internet mob to identify everyone correctly and identify their side or their motivation. You should always do an investigation before terminating someone. Make sure you know what you are doing.

Keep in mind that you don't want to start firing people for their beliefs, but for their actions. The last thing you want is to turn your business into the thought police. How does this person behave at work? If his performance has always been good and his relationship with co-workers has always been fine, you'll probably want to think long and hard about what, if any, actions you take.

Remember that as soon as you start firing one group of people for their beliefs, no matter how abhorrent, you may find your beliefs on the table next. It's always best to exercise caution when terminating based on beliefs instead of actions.

The union exception

As a general rule, federal law says you can fire someone for speaking up as a racist (or as anything, really). There is no right to free speech in the workplace under the First Amendment. But if this had not been a protest but behavior during a union event, for instance, the racist actions would be protected. Employment attorney Jon Hyman brought this Eighth Circuit Court of Appeals case to my attention, which just said a company was required to let a white employee keep his job after he yelled the following at his African American co-workers:

  • "Hey, did you bring enough KFC for everyone?"
  • "Go back to Africa, you bunch of f***ing losers."
  • "Hey anybody smell that? I smell fried chicken and watermelon."

The court said this was protected speech because the racists were on the picket line and the African Americans were crossing the picket line to work. Therefore, it was union activity and protected speech. If you're freaking out over this court ruling, know you're not alone. A picket line shouldn't protect people from the consequences of their own words. And if the same words had been shouted at any other time and the employer didn't act to terminate, there would be a lawsuit on that side.

When protesting is protected by law

The union exception to racist activity doesn't apply here, but other state laws do. Marching in a protest is a legal activity, even if the cause is awful. Some states prohibit employers from firing employees--or even disciplining them--for partaking in a legal activity outside of work. If you're in one of those states, proceed with caution before terminating an employee who just proclaimed himself a racist in front of the entire nation.

Now, if that employee wasn't just protesting, but was engaged in violent activity, you'll have a stronger case for terminating. Violence isn't legal and therefore isn't a protected activity. And to be fair, if one of your employees was a counterprotester who also engaged in violent acts, that person should be terminated as well.

In most states, though, you can simply fire the employee, as no right to free speech exists in the workplace. Double check with your attorney first, of course.

Should you fire an identified protester?

If there are no legal reasons to retain a person, you're free to terminate--as long as you don't have a contract or live in Montana (the only state without at-will employment). But, should you?

If the person identified is in a management position, it is vastly different than if he is a 17-year-old student. Why? Because brain development doesn't finish until the mid-20s, so there is a bit of stupid still going on in a young brain. I'd advise sitting down and going over your nondiscrimination policy and make it exceedingly clear that any violations of the policy will result in immediate termination. However, keep in mind that if your clients are willing to boycott over this issue, it's probably not worth it.

A manager, on the other hand, has responsibilities over other staff. You cannot have someone managing other people who will not treat them fairly and without regard to race (or gender, or religion, or any other protected status). I'd advise working with your employment attorney and the employee to negotiate an exit if you feel the person cannot separate their personal feelings from their work responsibilities. Remember to focus on actual behavior rather than their feelings.

Regardless of what you want to do, I'd advise you to pick up the phone and speak to your employment attorney (not your corporate attorney, or your friend the real estate attorney), before taking any action. You want your business to be protected either way.

Published on: Aug 14, 2017
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