Dissenting viewpoints are often lauded in business – but what happens if an employee’s extremist views infiltrate the workplace?
When so-called alt-right groups descended on Charlottesville in the US in August, several of those taking part were identified on social media and subsequently lost their jobs.
It was a timely, if troubling, wake-up call for employers globally: is it possible to take disciplinary action or even to fire an employee for his or her political views or affiliation with extremist groups?
Unsurprisingly, the answer is not clear-cut. Different jurisdictions around the world naturally have their own rules. In Australia, the issue is further complicated by different state laws relating to anti-discrimination, in addition to adverse action provisions in the Fair Work Act.
However, generally employees cannot be terminated just because they belong to an extremist group.
The exception is if the affiliation or unacceptable behaviour carries over into the workplace through job-related misconduct, such as harassment of employees who are in minority groups or the creation of a hostile work environment. In cases like this, the employer does have certain rights.
Any legal rights held by employers must be balanced against the rights of employees.
"The fact that the employee might be affiliated with a hate group usually isn’t enough," says Kylie Groves, partner at Hall & Wilcox.
"Circumstances where it might be enough is where the employer can prove or establish that the employees’ affiliation with a hate group is detrimental to their business or somehow is impacting on the employment relationship."
Regardless of geographic location, all employers must be careful in defining a 'hate group', says XpertHR legal editor David Weisenfeld. For instance, someone who believes homosexuality is immoral but otherwise is an exemplary employee would likely not fall into the category of someone who supports 'hate groups'.
Weisenfeld adds that no employer wants to be seen as "overreaching". He cites North Carolina employment attorney Robin Shea, who eloquently suggested that employers should limit defining hate groups to those groups that preach the racial or ethnic inferiority of others or that espouse violence.
However, it's a fine line to tread between respecting freedom of speech and protecting a company – and its employees – from harm.
"Employers don’t want to be seen as stifling any dissenting view," Weisenfeld says. "If the employee is expressing political views outwardly to customers during work hours in a way that affects the business then it would be a different matter."
Weisenfeld suggests that for an employer with a diverse workforce, but really for any employer, it’s important to consider the business impact if political extremism is left unchecked. This might include: causing other employees to be distracted and give less than their best effort; or causing good performers to look for work elsewhere.
He adds that doing nothing is a decision in itself and “could be tantamount to giving tacit approval to the political extremism".
Groves says that it may also depend on how those extreme views manifest themselves. For instance, if they do have racial ramifications, then that may classify as vilification, which is unlawful behaviour.
"Racial vilification is unlawful under most of the anti-discrimination legislation in Australia," Groves says.
However, she suggests "it's a pretty high test" to establish racial vilification and often it’s not really for the employer to argue that someone is being racially vilified; it needs to be the group affected by the comments that needs to make a complaint.
If an employee was expressing views that fell within one of the vilification definitions, it would be incumbent on the employer to do something about that because they would be vicariously liable for that employee's conduct if other employees have been negatively impacted – for example, if it affected their mental health or they regarded it as bullying.
Groves says there are several key elements to consider.
Firstly, is the conduct – when viewed objectively – likely to cause serious damage to the relationship between the employer and the employee? For instance, an employee on social media is criticising their employer by saying they take a 'touchy-feely' approach to homosexuals, or a similar view whereby they identify their employer and criticise their employer on social media for those views: such an action would likely fit into this category.
Secondly, does the off-duty conduct damage the employer's interests? This occurred in the case of Cameron Little v Credit Corp Group Limited [2013] FWC 9642, whereby the FWC held that Mr Little’s comments on Facebook about not-for-profit organisation Christians Against Poverty damaged his employer’s interests, because Credit Corp Group’s client base was other not-for-profits, and this justified the termination of his employment.
To cite another hypothetical example, if someone was arrested at a rally for the National Front, could their employer use that to terminate their employment?
"It would go back to whether they are able to establish a connection to their employment," Groves says. "If there is no connection – they weren’t wearing a t-shirt with the employer's name on it or they haven’t put anything on social media and there’s no other connection, it’s unlikely you would be able to take much action, even if you as the employer thought they had done the wrong thing."
Indeed, a common defense from an employee might be that their personal life has nothing to do with their work and 'never the twain shall meet'. However, in an age of social media, this argument is tenuous at best.
"The counter argument would be that if other employees are aware of those beliefs, it potentially could harm the workplace and become very much the concern of the employer," says Weisenfeld.
These are also well-established principles that are often referred to in social media cases; however, Groves says they apply to any sort of out of work conduct.
An employee who expresses their extreme views in a public social media forum "would have less of a leg to stand on", Weisenfeld suggests. Again, once co-workers have seen those views it could greatly hamper employee morale, not to mention customers who could stumble onto them.
"It would be very much akin to making sexist remarks on Facebook – and equally difficult to defend," he says.
Weisenfeld offers some parting tips to employers. Firstly, ensure all the facts are gathered and remember there is a difference between having views that may be outside of the political mainstream and being a member of a hate group.
"In addition, one employee saying a co-worker is in a hate group doesn’t necessarily make it so," he says.
"The complaint may be 100% legitimate or the accuser may have an ax to grind. Either way, the employer generally should speak to the accused before taking disciplinary action."
Groves advises employers to continually remind employees of their expectations regarding acceptable and unacceptable behaviour in the workplace; and secondly, to have policies that reinforce these expectations.
"We see the problem when it’s too late – the conduct has occurred and the employer is trying to deal with the conduct," she says.
"But it’s a prevention is better than a cure scenario. For the prevention to be achievable, it comes down to not only having clear expectations in your policies, but to have training and other interventions to ensure you have a more tolerant workplace."
It was a timely, if troubling, wake-up call for employers globally: is it possible to take disciplinary action or even to fire an employee for his or her political views or affiliation with extremist groups?
Unsurprisingly, the answer is not clear-cut. Different jurisdictions around the world naturally have their own rules. In Australia, the issue is further complicated by different state laws relating to anti-discrimination, in addition to adverse action provisions in the Fair Work Act.
However, generally employees cannot be terminated just because they belong to an extremist group.
The exception is if the affiliation or unacceptable behaviour carries over into the workplace through job-related misconduct, such as harassment of employees who are in minority groups or the creation of a hostile work environment. In cases like this, the employer does have certain rights.
Any legal rights held by employers must be balanced against the rights of employees.
"The fact that the employee might be affiliated with a hate group usually isn’t enough," says Kylie Groves, partner at Hall & Wilcox.
"Circumstances where it might be enough is where the employer can prove or establish that the employees’ affiliation with a hate group is detrimental to their business or somehow is impacting on the employment relationship."
Regardless of geographic location, all employers must be careful in defining a 'hate group', says XpertHR legal editor David Weisenfeld. For instance, someone who believes homosexuality is immoral but otherwise is an exemplary employee would likely not fall into the category of someone who supports 'hate groups'.
Weisenfeld adds that no employer wants to be seen as "overreaching". He cites North Carolina employment attorney Robin Shea, who eloquently suggested that employers should limit defining hate groups to those groups that preach the racial or ethnic inferiority of others or that espouse violence.
However, it's a fine line to tread between respecting freedom of speech and protecting a company – and its employees – from harm.
"Employers don’t want to be seen as stifling any dissenting view," Weisenfeld says. "If the employee is expressing political views outwardly to customers during work hours in a way that affects the business then it would be a different matter."
Weisenfeld suggests that for an employer with a diverse workforce, but really for any employer, it’s important to consider the business impact if political extremism is left unchecked. This might include: causing other employees to be distracted and give less than their best effort; or causing good performers to look for work elsewhere.
He adds that doing nothing is a decision in itself and “could be tantamount to giving tacit approval to the political extremism".
Groves says that it may also depend on how those extreme views manifest themselves. For instance, if they do have racial ramifications, then that may classify as vilification, which is unlawful behaviour.
"Racial vilification is unlawful under most of the anti-discrimination legislation in Australia," Groves says.
However, she suggests "it's a pretty high test" to establish racial vilification and often it’s not really for the employer to argue that someone is being racially vilified; it needs to be the group affected by the comments that needs to make a complaint.
If an employee was expressing views that fell within one of the vilification definitions, it would be incumbent on the employer to do something about that because they would be vicariously liable for that employee's conduct if other employees have been negatively impacted – for example, if it affected their mental health or they regarded it as bullying.
Groves says there are several key elements to consider.
Firstly, is the conduct – when viewed objectively – likely to cause serious damage to the relationship between the employer and the employee? For instance, an employee on social media is criticising their employer by saying they take a 'touchy-feely' approach to homosexuals, or a similar view whereby they identify their employer and criticise their employer on social media for those views: such an action would likely fit into this category.
Secondly, does the off-duty conduct damage the employer's interests? This occurred in the case of Cameron Little v Credit Corp Group Limited [2013] FWC 9642, whereby the FWC held that Mr Little’s comments on Facebook about not-for-profit organisation Christians Against Poverty damaged his employer’s interests, because Credit Corp Group’s client base was other not-for-profits, and this justified the termination of his employment.
To cite another hypothetical example, if someone was arrested at a rally for the National Front, could their employer use that to terminate their employment?
"It would go back to whether they are able to establish a connection to their employment," Groves says. "If there is no connection – they weren’t wearing a t-shirt with the employer's name on it or they haven’t put anything on social media and there’s no other connection, it’s unlikely you would be able to take much action, even if you as the employer thought they had done the wrong thing."
Indeed, a common defense from an employee might be that their personal life has nothing to do with their work and 'never the twain shall meet'. However, in an age of social media, this argument is tenuous at best.
"The counter argument would be that if other employees are aware of those beliefs, it potentially could harm the workplace and become very much the concern of the employer," says Weisenfeld.
These are also well-established principles that are often referred to in social media cases; however, Groves says they apply to any sort of out of work conduct.
An employee who expresses their extreme views in a public social media forum "would have less of a leg to stand on", Weisenfeld suggests. Again, once co-workers have seen those views it could greatly hamper employee morale, not to mention customers who could stumble onto them.
"It would be very much akin to making sexist remarks on Facebook – and equally difficult to defend," he says.
Weisenfeld offers some parting tips to employers. Firstly, ensure all the facts are gathered and remember there is a difference between having views that may be outside of the political mainstream and being a member of a hate group.
"In addition, one employee saying a co-worker is in a hate group doesn’t necessarily make it so," he says.
"The complaint may be 100% legitimate or the accuser may have an ax to grind. Either way, the employer generally should speak to the accused before taking disciplinary action."
Groves advises employers to continually remind employees of their expectations regarding acceptable and unacceptable behaviour in the workplace; and secondly, to have policies that reinforce these expectations.
"We see the problem when it’s too late – the conduct has occurred and the employer is trying to deal with the conduct," she says.
"But it’s a prevention is better than a cure scenario. For the prevention to be achievable, it comes down to not only having clear expectations in your policies, but to have training and other interventions to ensure you have a more tolerant workplace."
