Two recent major news stories again involve the intersection of politics with employment law. In the first matter, Google fired a programmer after he posted an internal document criticizing the company’s diversity initiatives. The document explained the employee’s view that biological reasons account in part for the low percentage of female tech workers at Google and comparable companies, and he alleged that the diversity initiatives harmed Google’s business interests.
In the second story, following alt-right protests over removal of a Confederate statue in Charlottesville, a number of online groups began identifying protesters from video and photographs taken at the demonstrations and contacting their employers, demanding that the employees be terminated for white supremacist activities. As of today, news reports indicate that several employers complied with these requests, terminating the employees in question.Both of these situations raise questions over employers’ legal ability to terminate employees for political views expressed inside or outside of work. The first reaction of persons terminated for expressing such views is to claim violation of their First Amendment rights to free speech. The First Amendment only applies to action taken by the government and in no way limits the ability of private sector employers to take adverse action against employees based on expression of views they view as incompatible with their employment status, whether or not these views were ever expressed or acted upon in the workplace.
The legal analysis does not stop here. In the Google matter, the terminated employee has already filed an unfair labor practice charge with the National Labor Relations Board (NLRB), claiming that he was fired in retaliation for engaging in protected concerted activity under Section 7 of the NLRA. He alleges that his comments involved complaints about terms and conditions of employment, including claims of bias against non-diverse employees. Google will likely contend that the document was not protected because it was not part of an ongoing discussion among a group of employees. Also, the NLRB has interpreted certain racial or sexist comments and behavior (see below article) to be outside the scope of Section 7’s protections.
The terminated Charlottesville protesters could claim reverse race discrimination, alleging that the employer does not discipline or terminate minority employees for expressing equivalent political views. They may have a hard time convincing the EEOC or a federal judge of this purported equivalency.
Employers may have valid reasons for wanting to stay out of their employees’ political views unless those views have some impact on the workplace. However, with appropriate legal review and guidance, companies are not prohibited from taking these views into account when determining whether expression of extreme positions disqualifies them from continuing employment.