Why the First Amendment won’t protect Charlottesville white supremacists from being fired – MarketWatch

Posted: August 15, 2017 at 11:53 am

The ugly and tragic events in Charlottesville, Va., which resulted in the death of one 32-year-old woman who was hit by a car, have sparked rallies across the country and the firing of at least one white nationalist marcher.

Trending hashtags on Twitter #nazihunter and #goodnightaltright and accounts like @yesyoureracist are calling on the public to identify people who attended the white nationalist rally in Charlottesville so they can be brought to justice. At least one alt-right marcher has already been fired by his company for reportedly attending the march; he worked as a cook for the Berkeley, Calif., hot dog chain Top Dog. I think its really important as a statement to show thats not tolerated, one customer told NBC Bay Area.

Experts say employers like Top Dog, who dont agree with views their employees express, have every right to fire those employees without any notice. The white nationalist marchers in Charlottesville chanted anti-semitic and racist slogans such as Jew will not replace us and blood and soil, a phrase used by Nazis, as they carried tiki torches and weapons, as they made their way onto the University of Virginias campus. They were opposing the removal of a statue of Confederate general Robert E. Lee.

Employees are legally protected from being fired based on discrimination, for their race, color, religion, sex, or national origin, according to the Civil Rights Act of 1964. But the First Amendment, which prohibits the government from interfering in the free exercise of speech and religion, does not protect employees who make statements or donations in favor of causes their employers disagree with from being fired, said Mark Tushnet, a professor of law at Harvard Law School.

But perhaps more surprising: Companies also have the right to terminate those who clashed with the white supremacist marchers. Attending a rally no matter what side youre on can get you fired. Private-sector employees are generally employed at the will of the employer, Tushnet said, and their employers can fire them as they see fit. That includes disagreement with what they say in public, he said. (One big caveat: The employer could open itself up to lawsuits if it fires someone in what turns out to be a case of mistaken identity.)

Who is at risk of getting fired all depends on the company. Journalists were warned not to attend the womens march in Washington, D.C. following Trumps inauguration. The editor of The Atlantic, for example, told employees they couldnt do anything that might be perceived as political, except vote. In 2011, two NPR journalists were fired for participating in Occupy Wall Street protests. But if you work for the American Civil Liberties Union? Taking time out to march for a social cause may even burnish your credentials.

Talking about sensitive politics at work, posting on social media, or making donations to a political cause can also be grounds for firing, said Paula Brantner, senior adviser at Workplace Fairness, an employment law nonprofit. Employees sometimes mistakenly think giving a donation to a candidate is private, but its public record, and can cost you your job if an employer says I dont want someone who supports this candidate working with me, she said.

There are exceptions to this rule. Some states including New York, California and the district Washington, D.C., have specific laws that protect employees from being disciplined for their political activities outside of work, said Merrick Rossein, a professor of law and former acting dean of CUNY Law School in New York, but even in those states, employers could argue that employees views or actions make them unable to do their job well.

And many employees dont even have to attend a rally to be terminated. The author of the now infamous Google memo about diversity was dismissed from his job for saying women are inherently unsuited for jobs in tech, in part because theyre prone to being neurotic. The employer is also perfectly fine to say we dont want people who have those opinions working for our company, Brantner said. The employee in question, software engineer James Damore, is reportedly exploring legal action against Google.

Im not going to be the one to tell people not to participate in rallies or support a candidate, Brantner added, but I want people to be aware there are potential consequences.

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Why the First Amendment won't protect Charlottesville white supremacists from being fired - MarketWatch

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