Lynne Curry: You employ a policital activist; can you fire him?

Lynne Curry

Every year in Anchorage, controversial topics like labor ordinances, sexual orientation and marijuana legalization come before voters. Such issues stir strong emotions and polarize the community. 

What if someone employed by your company speaks out and winds up on the 6 o'clock news or the front page of the Daily News? Could it cost your company business?

Absolutely. Many people resent organizations whose managers take the "wrong" stance on volatile issues, occasionally leading to a store or business boycott. On a national level, the reality TV show "Duck Dynasty" reported a 28 percent drop in viewers and its lowest ratings in 13 months after one of its stars, Phil Robertson, made anti-gay remarks in a GQ magazine interview.

If your manager's outspoken comments cost your company business, can you fire him before he costs you more? If an employee becomes a media sensation over a controversial issue and you terminate or suspend him, can he sue for a well-funded retirement, or might such an action cause an even more hurtful backlash?

Two recent cases, the Minnesota Vikings' Chris Kluwe and "Duck Dynasty's" Robertson, reveal what could happen to a company that terminates or suspends the politically outspoken employee.

Kluwe, a Vikings punter, became a media sensation by publicly protesting a proposed state constitutional amendment defining marriage as "only a union of one man and one woman." Many gave Kluwe partial credit for defeating the amendment.

Kluwe contends the Vikings replaced him because he supported same-sex marriage. He told he was fired by two cowards and a bigot. Kluwe also accused his coach of asking him if he "had written any letters defending 'the gays' recently," and telling him he "would wind up burning in hell with the gays."

Can Kluwe sue for wrongful termination? According to attorney Jeffrey O'Brien, "Although Kluwe has a difficult mountain to climb if he wants to prove he was fired for his outspoken political activism, Priefer (the coach) was in direct supervisory role over Kluwe. If Priefer made inflammatory statements to Kluwe that created a hostile work environment, this could constitute illegal harassment."

The coach disputes Kluwe's claims. The Vikings hired a former Minnesota Supreme Court chief justice and a former U.S. Department of Justice attorney to conduct an independent investigation of Kluwe's allegations.

Further, while the Vikings say they let Kluwe go for football reasons, Kluwe's attorney claims Kluwe protested the coach's remarks shortly before the Vikings released him. If so, the Federal Civil Rights Act protects employees from retaliation for protesting discrimination. Kluwe may have a case because of another manager's comments that appear to retaliate against Kluwe's for his support of gay rights. Sexual orientation is protected under Minnesota law.

In another well-publicized case -- involving controversial beliefs on the other side of the same issue -- A&E Media "indefinitely" suspended Robertson of "Duck Dynasty" for insulting gay people and making insensitive racial statements. After a national backlash protesting that Robertson had simply publicly expressed his personal religious views, A&E reinstated him.

According to attorney turned HR consultant Rick Birdsall, Robertson may have a "religious discrimination claim because Title VII prohibits employers from discriminating against individuals due to their religious views," and "religion includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship to the conduct of the employer's business."

Although A&E might argue that Robertson doesn't have employee protections as a contractor, Birdsall notes that Title VII prohibits employers from discriminating against "any individual," which may include contractors. Further, Robertson made his comments in the context of his role as a "Duck Dynasty" "representative."

Meanwhile, politically active employees take a true risk, particularly when their views run counter to their employers' beliefs or interests. While the doctrine of good faith and fair dealing protects employees against unfair termination, including retaliation, employment at will allows employers to terminate employees for any or no reason.


By Lynne Curry