Can employees like those who participated in 'Unite the Right' in Charlottesville be fired?

Woman killed in Virginia rally was a born do gooder says mother New York Post, by Max Jaeger, August 13, 2017

Can employees like those who participated in 'Unite the Right' in Charlottesville be fired?
ABA Journal Online Daily News
By Stephanie Francis Ward
Posted August 15, 2017, 1:57 pm CDT

Do protestors who appear in photographs and are affiliated with white nationalist and similar groups have job protections in spite of the potential issues they may bring? The issue is complicated, employment lawyers told the National Law Journal.

Various social media feeds, including the one from Twitter user YesYoureRacist, continue to use crowdsourcing to identify protesters from Saturday’s "Unite the Right" rally in Charlottesville, Virginia, that left one woman dead and dozens injured. Cole White, who was one of those called out, reportedly lost his job at a Berkeley, California, restaurant.

Political views are not a protected class under federal Title VII civil rights protections, the article notes. Government employees do have free speech rights, but they’re limited in the workplace.

Also, an employer could see an employee espousing views that discriminate against people as a Title VII complaint waiting to happen. Social media has intensified the debate, says Richard Cohen, an employment lawyer with FisherBroyles.

"If an employer is watching television news — like what happened [in Charlottesville] — and sees one of his or her employees on either side of the barricades, there is nothing that protects those workers, unless they fall into another protected class," he said.

There may be an exception for speech protections, including speech that’s racist, sexist or discriminatory.

"Whether or not you agree with one or the other or the incident horrified you, it can be argued, at least from a civil rights point of view, it was protected activity," Cohen said.

That could be a stretch, said Foley & Lardner’s Donald Schroeder.

"It’s one thing to engage in a peaceful march, it’s another to engage in bottle throwing and a violent march with slurs and vulgar language," he said. "Could they bring a Title VII case? Sure, but I think it would be extremely difficult to move it forward." Read more

See also: ABA Journal: "Public Employees, Private Speech: 1st Amendment doesn’t always protect government workers"

When Good Courts Go Bad: The Iowa Supreme Court Issues an Absurd Decision on Sexual Jealousy and Employment

When Good Courts Go Bad: The Iowa Supreme Court Issues an Absurd Decision on Sexual Jealousy and Employment
Justia.com
by Joanna L. Grossman
January 8, 2013

In 2009, the Iowa Supreme Court made national news for its surprising and unanimous decision in Varnum v. Brien, in which it held that the state’s ban on same-sex marriage violated the state constitution’s guarantee of equal protection.  Iowa was not the first state to legalize same-sex marriage—Massachusetts came first in 2004, followed by a handful of others in 2008—but it was the first to do so outside of the liberal confines of the Northeast.

Iowa’s high court made headlines again in 2010, when three of the justices who joined the Varnum opinion were recalled from the bench because of the decision.  The three included the court’s only woman; all three vacancies were filled by men.

Now the court is back in the news—or at least, it should be—for an illogical decision that misinterprets governing civil rights statutes and reaches a preposterous result.  In this ruling, in Nelson v. Knight, the court held that a male dentist did not violate a law banning sex discrimination when he fired his very competent female dental assistant because he found her to be an "irresistible attraction" whose very presence might incite him to commit sexual harassment and, perhaps ultimately, cost him his marriage.

In this column, I’ll explain why this ruling hearkens back to mistakes of the 1970s, when courts, including the U.S. Supreme Court, struggled to figure out just exactly what "sex discrimination" is.  But forty years of anti-discrimination law later, we know it when we see it.  And this is definitely it. The Iowa court has done women’s workplace equality a colossal injustice by allowing men’s inability to control themselves to define women’s employment rights.

A Day in the Life of Dr. Knight’s Dental Office

In 1999, dentist James Knight hired Melissa Nelson to be a dental assistant in his office.  She was 20 years old and had just received a two-year college degree.  She worked in that position for over ten years and was, according to Dr. Knight, a "good assistant."  She, in turn, said he was a person of "high integrity" and that he generally treated her in a respectful manner.  Both Knight and Nelson were both married with children.

The tenor in the office seemed to change in the last year-and-a-half of Nelson’s employment.  (The opinion does not reveal Knight’s age, but a mid-life crisis jumps out as one possible explanation.)  Knight began to comment to Nelson that her clothing was "distracting," too tight, or too revealing.  Nelson denied that her clothing was inappropriate, but did put on a lab coat whenever he complained.  (Nelson states in a video interview with CNN, given after the verdict, that she wore t-shirts and scrubs to work.)

At some point, Knight and Nelson began texting each other about both work and personal matters.  Some of these matters were innocuous—such as updates on their respective children’s activities—and others were more intimate.  According to the available evidence, the in-person comments and texts of a sexual nature seemed to emanate exclusively from Dr. Knight.  Knight admits that he once told Nelson if she saw his pants "bulging" then she would know she was dressed in too sexy a manner.  He texted her once to complain that the shirt she wore that day was too tight.  Nelson replied that she thought his complaint was unfair.  His surreply? He told her it was a good thing she did not wear tight pants too, because then he would get it coming and going. Read more