Can you fire an employee who posts Nazi propaganda on Facebook?

Maybe you’ve heard about it. I’m giving a little spiel today on social media in the workplace with a few friends at an event in Philadelphia. If I play my cards right, I’ll do as little speaking as possible on the dais.

Which means I’ll get my two cents in after the jump and discuss on a hockey coach who was recently fired for posting pictures of Nazi propaganda on Facebook.

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Last week, I read this story in USA Today from Cam Smith, in which he reports that the North Delta Minor Hockey Association fired one of its junior hockey coaches after it learned that he had posted pictures of Nazi items and propaganda on his Facebook page.

The NDMHA defended the termination in a statement in which it characterized the post as containing “extreme and objectionable material believed to be incompatible with an important purpose of our minor hockey association — to promote and encourage good citizenship.”

Now, let’s assume that this went down in the USA. Could the former employee argue religious discrimination (with a straight face)? Well, Title VII does forbid discrimination based on religion, which comprises sincerely held religious, ethical or moral beliefs. And I suppose that, under this broad umbrella, there may be a religious aspect to Nazism.

Or how about some claim of wrongful discharge because posting pictures of Nazi propaganda on one’s own time, while offensive to some, is perfectly legal? Some states do have these off-duty-conduct laws.

But, there’s another important consideration here. Remember that an employer should take reasonable steps to keep its workplace free from discrimination. And in our 24/7 social media world, what are the odds that a Facebook post about Nazi propaganda — even one made “off the clock” — doesn’t somehow become an issue in the workplace?

There are situations in which an employer can turn a blind eye to the stupid stuff that employees say and do on their own time on social media. But, this isn’t one of them. Besides, imagine what would happen if a company knew about an employee’s Nazi post and did nothing about it. It could easily offend a co-worker; maybe contribute to a hostile work environment. So, a firing makes sense to me.

And do you really want to be known as the company that employs a Nazi enthusiast?

  • Bob Small

    Eric, Great forum this AM. Thanks to you and your firm for hosting. As you know, this issue came up as a question by one of the attendees and Chai Feldblum gave a similar answer. I think it is a bit more complex. Suppose the employer is a governmental entity. Free speech rights are now implicated especially if only the employer (as opposed to co workers) has become aware of the post or even if co workers have no one has complained. In the private employer situation free speech is not implicated but suppose you have a really important employee making the post and no co worker has complained. Do you still tell the employer he has to fire the employee? The post can only contribute to harassment in the workplace if there is more going on. If a co worker confronts the person posting and the opinion is then brought into the workplace I agree that the employer must act and termination might (but might not) be the correct response. But I am not convinced that the mere posting itself requires termination.

    • Hi Bob.

      Thank you for the comment and for attending today. (We really need to grab lunch sometime). I agree that 24/7 social media and off-duty conduct that is not the focus of an employee complaint, can put an employer to a difficult decision.

      I have no problem with the employer’s response to the Nazi propaganda. But, had the post been more mild, a more measured response that is reasonably designed to ensure that such stupidity is not repeated (training? counseling?) could be appropriate, in lieu of termination.