Legal to fire workplace Nazis? You bet—it highlights limits on freedom of speech in private employment

A Minneapolis restaurant has fired two employees whose photos—showing them clad in Nazi garb and brandishing white supremacy paraphernalia—were circulating on social media Tuesday. The restaurant took to Facebook to stem a growing movement to boycott the establishment absent a response.

“The Uptown Diner unequivocally repudiates the beliefs and ideals of neo-Nazis and white supremacy,” the Uptown Diner posted on Facebook. “Hate and bigotry have no place in society. We are committed to fostering an inclusive, welcoming environment at our restaurant and in our community.”

So do employees like them have a claim for wrongful termination?  It’s not the type of case we’d take for both moral and legal reasons.

As a practical matter, the employees’ purported activities and behavior are morally repugnant to us, and our professional code of conduct for lawyers allows us to decline representation where “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”

Legally, these employees would have a steep, if not impossible, road to recovery if they decided to sue the Uptown Diner for wrongful termination.

But wait! What about our freedom of speech and freedom of expression guaranteed by the Constitution? That’s where the Uptown Diner alleged Nazis provide a cautionary tale to everyone—even those inclined to speak out out on less controversial topics in private workplaces.

Freedom of speech is one of the most deeply held tenets of our society. We hear the phrase “freedom of speech” used all the time in all kinds of contexts.  What’s lost in those conversations, most of the time by everyday people, is that the Constitutional guarantee of free speech only applies to the government and its powers to limit speech. The Constitution doesn’t say what private employers can and can’t do when it comes to speech. 

To put it simply: constitutional freedom of speech doesn’t apply in the private workplace when it comes to broadcasting your personal views and beliefs (public employees might have options, so if you’re reading this and feel you’ve been targeted because of speech in a public workplace, you should talk to a lawyer about your situation).

At best, the Uptown Diner employees, accused of being Nazis on account of their online photos, might try to argue that they’ve been fired on account of their political views—if they could even call their actions and speech expressions of political views. Even then, there aren't many legal avenues to pursue.

Like many states, the Minnesota Human Rights Act does not explicitly list communicating on political matters as a protected category for which employers may not discriminate. In Wisconsin, however, an employer may not discriminate on the basis of “ participat[ion] in any communication about … political matters.”

The Uptown Diner example highlights the competing societal interests we often fail to appreciate.  We value freedom of speech and we also value workplaces that are free from discrimination—in the broadest possible ways. That’s why we’ve seen recent examples of free speech advocates standing up for folks who’ve been dismissed by their employers for taking highly controversial views. 

Coming up with the "right" result forces us to confront that we're walking a fine line on these competing values. 

If there’s one important lesson here: watch what you say at work when it comes to expressing your personal views and beliefs. You could be fired for it and, depending on the topic and context, you may not have legal recourse (important caveat: in most cases, you can’t be fired for who you are when it comes to your religion, gender, sexual orientation, race, etc.—so if that’s the real reason and your alleged “speech” is a cover-up for one of those reasons, call a lawyer).