The Legalities of Firing Nazis

Charlottesville, Virginia is on everybody’s lips. In response to the removal of Confederate monuments, neo-Nazis, KKK members, white supremacists, militia, hard right conservatives, and others gathered–many armed with semi-automatic rifles and clothed in body armor–in Charlottesville for a “Unite the Right” rally. These people gathered, hoods off and faces revealed to the public.

In the process of their armed protest, violence erupted against people protesting against the ideologies of those gathered–often essentially white supremacy and ethnic genocide”–in the wake of this violence one woman lay dead and fourteen were injured after a man named James Field rammed his car through a crowd of protesters. All told, the body count to date is three dead and dozens injured.

In response to the hatred inherent in the rally and the horrific acts of those such as James Field, many online took a beautifully simple step to strike back against neo-Nazi and KKK supporters-they posted pictures of them at the rally online. People took to Twitter and posted these pictures along with text reading “Do you know me? Are you my employer?

I was at a neo-Nazi rally in Charlottesville.” This immediately drew the attention of those on social media and many identified the people at the rally. At least one employer–a hot dog restaurant out of Berkeley called Top Dog–fired an employee named Cole White for his photographed participation in a gathering of white supremacists at the rally.

The release of these pictures has led to some outcry from those who attended the rally and their supporters. They cry invasion of privacy and describe posting their pictures as “doxing”-a common term for posting personal information of a third party online in order to incite harassment. Let’s quickly dismiss these arguments, that simply isn’t how privacy or privacy law works.

Privacy interests under the law hinge on your reasonable expectation of privacy in what you’re doing or in the information. If you are having a phone call alone in your house, there is a strong expectation of privacy. If you take to streets, masks off revealing your affiliation with the KKK, you have no expectation of privacy whatsoever. People can take pictures, people can generally post those pictures–you have almost no expectation of privacy in things you do on public streets.

The second thing that has these rally-goers in a tizzy is the potential of more employers going along the path of Top Dog and–who would have thought–firing people who reveal themselves as Nazi’s or white supremacists. Their arguments have trended towards one of two categories–reverse racism and violation of the First Amendment by firing them for political beliefs.

We’ll be discussing firing over political beliefs later in a fair bit of depth. However, let’s start with reverse racism as an argument, because it is usually patently ridiculous and almost never exists under the law. While race-based discrimination can include Caucasian people, proving a claim of discrimination against a majority group such as this requires showing a higher standard of evidence as it is extremely rare to be able to establish a majority group is treated worse than a minority group.

The Legalities of Firing Nazis

The complaint of these rally-goers over the potential of being fired for their political beliefs is a more complicated one-mostly because there is a common misconception that employers can’t fire you for your political beliefs. Unless you are employed by the government, not only can a private employer generally fire you for your political beliefs they can even pressure you into voting a certain way.

Just recently, it was ruled that a police chief could fire his employees for not donating to his political campaign. Generally, when not being applied to Nazis, this sounds a little scary. However, it makes sense considering how the First Amendment works. The First Amendment protects against government action curtailing freedom of speech, religion, and association-for the most part it does not apply whatsoever to private action or private employers. This includes political action taken outside of work.

There are several situations where a politically motivated firing can still get a private employer in trouble. Where the politics behind a firing overlaps with a protected class such a race, national origin, religion, or-in many states-sexual orientation or gender identity it can give rise to separate legal issues. Similarly, allowing a workplace environment where a boss or even many employees constantly discuss issues such as banning access to specific ethnicities, races, or countries, that can easily create a hostile work environment or constitute harassment.

Both can lead to legal action against an employer. Finally, an employer cannot punish political stances in a way that limits an employee’s ability to discuss terms of employment or unionization. For example, if employees feel a politician’s stances might impact their wages then an employer would generally not be able to punish them for talking about it.

All of this presumes the most common type of employment-at will employment. In this situation somebody can be fired for any (or no) reason and they can quit in the same circumstances. There are certainly situations where an employment contract may modify how an employer must act.

State laws can add some further protections for political affiliations. California and New York forbid discriminating against workers due to political views, political activities, or affiliations. However, there are exceptions where you either participate in a political activity that conflicts with your employer’s business model or it impacts your work. If an employee creates a liability to the company-such as a Nazi who might create a hostile work environment or harassment lawsuit against your business–an exemption may exist depending on the facts.

Other states have similar, but nowhere near as in-depth, laws regarding how political stances can be treated by employers. Kentucky, Ohio, Pennsylvania, and West Virginia make it illegal to fire or threaten to fire employees if any one political candidate is elected. Oregon makes it illegal to threaten an employee to influence their vote. In Washington, it is illegal to retaliate against an employee for not supporting a particular candidate, party, or ballot initiative.

It’s notable that this does not include firing somebody for supporting any of the above-or provide any protection whatsoever for broader political positions. Michigan protects against direct or indirect threats to influence an employee’s votes. Florida goes so far as make threatening to or firing an employee for not voting a certain way. California, Colorado, Louisiana, New York, and North Dakota make it illegal to act against an employee for off-duty participation in legal politics.

This last one is likely of the most concern. However, it only applies to legal political activity. This begs the question, is being a neo-Nazi or a white supremacist a legal political activity? The issue is not well resolved in the state courts where they’d be most relevant, but there is a strong argument that a desire for ethnic genocide is not a political position.

Yes, You Can Generally Fire Nazis for Being Nazis …and You Probably Should

For the most part, federal law has no protections for these white supremacists and Nazis. They have made their bed with their choices to appear in public and voice their support of hatred and ethnic genocide. Not only can employers fire such employees in most states, they are both morally in the right to do so and keeping these employees on may risk liability based on creating hostile work environment or allowing harassment of a protected class.

The repercussions are not over for those who chose to take to the streets in support of hatred. The criminal charges against James Fields are ongoing. GoDaddy and even Google have booted Nazi websites off their servers and search results respectively. The pictures online continue to be identified and brought to attention of employers. From here, we’ll have to see how many employers follow the example of Top Dog.