Can employees like those who participated in ‘Unite the Right’ in Charlottesville be fired?

Labor & Employment

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Do protestors who appear in photographs and are affiliated with white nationalist and similar groups have job protections in spite of the potential issues they may bring? The issue is complicated, employment lawyers told the National Law Journal.

Various social media feeds, including the one from Twitter user YesYoureRacist, continue to use crowdsourcing to identify protesters from Saturday’s “Unite the Right” rally in Charlottesville, Virginia, that left one woman dead and dozens injured. Cole White, who was one of those called out, reportedly lost his job at a Berkeley, California, restaurant.

Political views are not a protected class under federal Title VII civil rights protections, the article notes. Government employees do have free speech rights, but they’re limited in the workplace.

Also, an employer could see an employee espousing views that discriminate against people as a Title VII complaint waiting to happen. Social media has intensified the debate, says Richard Cohen, an employment lawyer with FisherBroyles.

“If an employer is watching television news — like what happened [in Charlottesville] — and sees one of his or her employees on either side of the barricades, there is nothing that protects those workers, unless they fall into another protected class,” he said.

There may be an exception for speech protections, including speech that’s racist, sexist or discriminatory.

“Whether or not you agree with one or the other or the incident horrified you, it can be argued, at least from a civil rights point of view, it was protected activity,” Cohen said.

That could be a stretch, said Foley & Lardner’s Donald Schroeder.

“It’s one thing to engage in a peaceful march, it’s another to engage in bottle throwing and a violent march with slurs and vulgar language,” he said. “Could they bring a Title VII case? Sure, but I think it would be extremely difficult to move it forward.”


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