If you’re a private sector employer, you can generally fire an at-will employee for his or her political beliefs or expression. The First Amendment, as we discussed last week, does not limit you. Depending on where you are, there may be state or local laws protecting employees from discrimination based on their political beliefs or activities, but those jurisdictions are the exception, not the rule.
And, of course, there may be very good reasons to terminate an employee based on extremist political beliefs. Imagine a member of the Aryan Brotherhood who has Jewish co-workers. Will that have an impact on the co-workers’ workplace experience? Maybe not, if he behaves professionally at work and keeps his affiliation secret, but it certainly has the potential to spill over into the workplace and create a hostile environment for his co-workers.
(True story: Many years ago, I was co-counsel in a sexual harassment lawsuit in North Carolina. An African-American male supervisor allegedly flirted with the white plaintiff in mild ways — for example, by telling her she looked nice and calling her “honey.” After she complained, the supervisor was disciplined. The plaintiff sued the company because the supervisor wasn’t fired. In her deposition, she testified that the supervisor’s behavior would have been no big deal if he’d been white, but it bothered her because he was black. We were able to get her lawsuit dismissed, arguing that if we fired him based on her race-based complaint, we would have been unlawfully discriminating against him. After it was all over, we heard that she was a member of the Ku Klux Klan, which explained a lot. If only we’d known earlier . . .)
So, yes, you can and sometimes should take action against employees based on their affiliation with extremist hate groups. But, as always, employers — even if they’re non-union and in the private sector — should aspire to be fair to everyone involved, or at least as fair as possible under the circumstances. Here are questions that every employer should ask itself before making a final decision to terminate an employee based on his or her political beliefs or activity: