Along with general mass hysteria, one of the things that came out of the Charlottesville "Unite the Right" rally was a widespread effort to identify and retaliate against individuals participating in the demonstration. While it might be understandable to exact some type of retribution on people expressing abhorrent views, the practice of doxing, or identifying people on social media for purposes of public embarrassment, can backfire for employers very quickly.
Several states, California for example, expressly protect an employee's political conduct from being a legitimate basis for some type of adverse employment action. We discussed this previously in the context of the recently terminated Google engineer, and it seems fairly clear that simple participation in a demonstration against the removal of a Confederate statue would qualify as political activity under the statute. Note, however, that engaging in conduct that urges violence against others, denigrates particular religious, racial or gender groups, or similar actions would likely take an employee out of the protected sphere and provide the employer with an adequate basis for disciplinary action or even termination.
A number of other states have a much broader protection for employees that prohibits employers from taking action against employees engaged in legal off-duty conduct. In some cases originally enacted to prevent employers from discharging smokers, these laws would seem to prohibit action against employees engaged in legitimate and lawful political demonstrations as well. Case in point-a Colorado grocery store worker was terminated allegedly because he organized and attended an adult Hitler rally and was affiliated with the Ku Klux Klan. He sued his employer in federal court trying to argue that the Klan was a religion. The federal court tossed the case, holding that the KKK was not a religion and political activity had no nexus to his employment. But the judge noted in his decision that the employee's claims might well have been successful had he filed in state court under Colorado's lawful off-duty conduct statute.
So a caution to you employers out there seeking to deal with your people participating in controversial events-don't rush to discipline them without checking first to see if you might be setting yourself up for a wrongful termination lawsuit. While you might not like the idea of someone holding a particular viewpoint working on your staff, having to pay them damages and perhaps even rehire them is a significantly poorer alternative.
I wish to thank my law colleague here in Denver, Nick Haynes, for the idea and research legwork for this post.
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