“You have a right – and in these times, a duty – to decry and dissociate yourself from bigotry. So might your employer.”
That was my conclusion after the white supremacist rally in Charlottesville over three years ago, discussing whether companies are within their rights to fire employees who engage in technically legal but morally repugnant activities off the clock.
The topic is newly, distressingly relevant after a violent pro-Trump mob carried out a failed insurrection at the U.S. Capitol on Jan. 6.
As with some participants in the 2017 rally, some of those who directly participated in the violent attack on the Capitol are being fired by their employers after being identified in photos and videos, some self-recorded.
But many businesses, social media platforms and other organizations are taking a harder line than in 2017, denouncing the inflammatory rhetoric of President Donald Trump and other political leaders that culminated in the violent assault on the Capitol and moving to dissociate themselves from anyone associated with the event.
Some are encouraging others to do the same. Forbes warned that any of its contributors hiring Trump White House press officials will be viewed as a “potential funnel of disinformation.”
Of course, the attack on the Capitol by pro-Trump rioters was orders of magnitude more violent than the Charlottesville incident, as well as an outright assault on democracy. But aside from the historic enormity, another factor in the swift and decisive condemnation from all quarters may be that over the last few years, increased awareness of incidents of racism, misogyny, xenophobia and other forms of bigotry, recorded and shared on social media, have put pressure on businesses to consider what side of history they want to be on. And many have decided, to quote President-elect Joe Biden, that “enough is enough is enough.”
“Employers have had the opportunity to step back and think, ‘How can we create an inclusive . . . and bias-free environment?’ ” and to emphasize their values to employees and the public, says Marta Coakley, legal editor of XpertHR.com. This includes being mindful of the implicit messages conveyed in words, images and affiliations. Employers that have done that work will not want to see it undone by footage of off-duty employees spewing racist epithets or wearing anti-Semitic sweatshirts – certainly not while wearing employer-branded gear or ID tags.
Coakley notes that more than half of U.S. states have laws that prohibit companies from firing employees for engaging in legal off-duty conduct, from smoking and drinking to political activity.
But beyond those specific state laws, you can still be fired from your private-sector job for engaging in protected free speech off the clock, if your employer determines it violates workplace culture.
Just ask Juli Briskman, the Virginia woman who lost her contracting job in 2017 after exercising her First Amendment rights in the form of a middle finger extended at President Donald Trump’s motorcade. (Two years later, she ran for election as Loudoun County supervisor and won.)
It’s also a matter of workplace safety. Employers can’t afford to ignore someone they think is “contributing to an unsafe work environment, whether they’ve not had enough forklift training, or showed up to the workplace drunk, or may have contracted or been exposed to a virus and not taken proper quarantine precautions,” says Coakley.
And they have to consider colleagues who may no longer feel safe in the workplace.”As a Capitol Hill staffer, it feels insane that we’ll be going back to work with the same people who incited and in some cases may have helped organize a deadly fascist attack on us,” Daniel Gleick, communications director for U.S. Rep. Val Demings, D-Fla., posted on Twitter. “Like, I walk by these people in the hallway. What am I supposed to do with that?”
Wait, isn’t this supposed to be an advice column?
Fair enough. Let’s switch perspectives. What if you get fired for off-duty behavior – nothing illegal, but being in the wrong place/cohort at the wrong time? Or what if you’re worried, as some White House staffers reportedly are, about carrying the stigma of having worked for a widely reviled employer?
If you have more chutzpah than regrets, you could follow the lead of the unnamed staffer who was quoted in Politico as saying he hopes to cite his steady service at the White House during the Capitol Hill siege as evidence that he is “an employee who can continue to produce and continue to have a good attitude in the toughest, highest-stakes and highest-pressure situations.” No doubt some employers will be impressed by that masterful spin.
Or you can admit to your regrets and describe your consequent efforts to revisit your values and contributions to society. (Note: This will go over better if you haven’t been immortalized in a news photo while hanging off the balcony of the Senate gallery.)
Whichever narrative you choose to embrace, you should have plenty of time to refine it as you join the ranks of other job-seekers. Fair warning: It’s a long line.