A Twitter account @YesYoureRacist started after the march in Charlottesville to solicit the identities of those who were photographed marching in the Unite the Right rally. The social media campaign used those identities to encourage employers of the protesters to terminate the protesters’ employment. 

It wasn’t just Cole White who was identified and lost his job due to this social media campaign. His well-documented story presents an example for employers. The Top Dog restaurant in California denied firing White. Their statement to the Washington Post said Cole voluntarily resigned and we accepted his resignation. It went on to say, “We do respect our employees’ rights to their opinions. They are free to make their own choices but must accept the responsibilities of those choices.” 

Since Top Dog is in California, it would be illegal to fire White based on his political activity. There are several California laws protecting employees’ political views, expression and activity including prohibiting employers from retaliation. New York and Washington, D.C. have similar laws. California, North Dakota and Colorado prohibit discrimination based on “lawful conduct outside of work.”  While no federal law protects private sector employees’ conduct outside of work or freedom of speech; public employees have the right to free speech and most union contracts include such protections.

White’s legal off-duty activity pushed Top Dog into a public relations crisis with people calling the restaurant requesting his termination. The restaurant posted a sign that read, “…Cole White no longer works at Top Dog. The actions of those in Charlottesville are not supported by Top Dog. We believe in individual freedom and voluntary association for everyone.”

Numerous calls inundated Top Dog requesting White’s termination disrupted work and cast a negative cloud on the business.  It is legal for most private-sector employers to terminate individuals based on conduct outside of work if it reflects poorly on the business; to terminate individuals who create a tangible negative effect on the business; and to terminate individuals whose conduct creates a disruption in the company or among other employees.  

Kimberly Ross, partner with FordHarrison suggests private employers “focus on the content of what is being said and the context in which it is being said.” If a manager acts on racist or anti-Semitic views at work, the employer is likely liable. In addition to a discrimination or harassment claim, if the manager overtly displayed racist or anti-Semitic views in such a rally the employer may be liable for negligent hiring, negligent retention or negligent supervision.

After White lost his job, one person tweeted, “Awesome! We must shame them into oblivion.”  Wikipedia defines McCarthyism as the practice of making accusations of subversion or treason without proper regard for evidence.  Social media and the Internet continue to change our landscape.  We must recognize the power of online vigilantes. 

A University of Arkansas professor misidentified as a protester led to a petition calling for his resignation. The university verified the person photographed was not the professor and the petition was removed. The University teaches us the lesson of curiosity. Employers should conduct an investigation before taking any adverse action to maintain a safe and healthy workplace.