Since the recent disturbances in Charlottesville, the question has arisen whether a private employer can lawfully fire an at will employee who took part in the neo-Nazi demonstration or other white supremacist activity that the employer finds offensive or embarrassing. As a matter of federal law, the answer is yes. The First and 14th Amendments restrict only government interference with political expression; they do not apply to purely private acts. No provision of the Civil Rights Act of 1964 or any other federal statute prohibits an employer from discriminating on the basis of political opinion or expression. As far as federal law is concerned, a private employer of an at-will employee may fire or refuse to hire a KKK member, an Antifa member, or, for that matter, a Republican or Democrat, simply because it finds his or her political views repugnant.
The answer under New Jersey law is not so clear. Unlike some other state anti-discrimination statutes, New Jersey’s Law Against Discrimination does not include political opinion or activity as a protected class. However, our Supreme Court has stated that an employer’s power to fire at-will employees is limited when the discharge would violate a “clear mandate of public policy” expressed in the constitution, a statute, a regulation or a judicial decision. It has found such a clear mandate in public officials’ duty to avoid conflict of interest, holding that an employer could not discharge an employee who was also a municipal councilman because the employee had voted for an ordinance opposed by a substantial customer.
