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posted: 10/1/2017 7:16 AM

Are biased workers entitled to protections?

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  • Some participants in the white nationalist rally in Charlottesville, Virginia, that led to the death of Heather Heyer were fired after being identified in photos.

    Some participants in the white nationalist rally in Charlottesville, Virginia, that led to the death of Heather Heyer were fired after being identified in photos.
    Photo for The Washington Post by Evelyn Hockstein


In the early days of this column, I responded to a reader about socializing at an office party with a "bigot" of a co-worker who subjected others to "talk of collecting Nazi memorabilia and pictures of her husband's swastika tattoo." Confident that such people belonged to a long-disgraced fringe group, I breezily advised the reader to remain polite and professional, and to prepare small talk as well as responses to potential offensive remarks.

Six years later, I'm feeling less sanguine. Assaults targeting people and property belonging to minority groups have increased, and a tiki-torch-lit white supremacist rally in my home state has left a protester dead. Consequently, many companies -- from web hosting to hospitality services -- have swiftly and publicly severed professional ties with political figures and clients seen as promoting white supremacy and other forms of hate.

More to the point for this column, employers are increasingly severing ties with employees for discriminatory words and deeds, on and off the clock. Participants in the Charlottesville, Virginia, rally have been fired after being identified in photos. An Arizona man was canned after posting a "joke" on Facebook about driving into a crowd of protesters. And a male Google employee was let go after circulating a memo asserting that female engineers are inherently less competent than male ones.

But, some ask, what about free speech? Except for a few state laws protecting certain forms of political speech, First Amendment restrictions don't apply to private-sector employers -- or to hate speech. A worker shunned for racist views "cannot claim to be the victim of a hostile work environment because federal workplace law simply does not protect racists the way it protects other classes of employees," says employment lawyer Declan Leonard of the firm Berenzweig Leonard.

And both private- and public-sector employers risk liability if they employ someone "who openly touts racist and anti-Semitic views (or [targets] any other protected class) at work or outside of work," says lawyer Amy Epstein Gluck of FisherBroyles. If off-the-clock activities, words or affiliations indicate that a worker sees humans of another group as inferior, how can that worker be trusted not to act on those biases at work?

Those fired may argue that they are the ones being unfairly targeted; the former Google employee has filed a complaint with the National Labor Relations Board arguing that his rights were violated. But, the NLRB notes, its protection does not extend to "saying or doing something egregiously offensive." Or, as employment lawyer Tom Spiggle puts it: "Expressing retro views about ability based on sex is hardly a rallying cry ... for better working conditions."

To revise my earlier remarks: You have a right -- and in these times, a duty -- to decry and dissociate yourself from bigotry. So might your employer.


Ask Karla Miller about your work dramas and traumas by emailing