Firing for Off-Duty Pro-Confederate-Flag Speech May Violate Colorado Statutes

So held a federal judge, I think correctly, interpreting those particular statutes, in a lawsuit against United Airlines.

Eugene Volokh, Reason.com, December 11, 2020

A woman in Colorado was fired from United Airlines, where she had worked for many years, for posting very mild things in support of the Confederate Flag, based on a campaign to trash the mascot at her old High School.  United Airlines filed for "summary judgement" dismissing the suit, and the Judge said "No".

Quotes below are from the judge's decision:

Sometime in August 2017, on her personal time and computer, Plaintiff re-posted to her private Facebook page her support for preserving the "Rebels" mascot of her high school, Weld Central High, including a cartoon soldier superimposed on a Confederate flag (the "Rebels mascot post"

Sometime also in August 2017, Plaintiff re-posted to her private Facebook page a video of an African American male in front of a Confederate flag who, among other things, opined that the Confederate flag is not the evil that many people say it is (the "Confederate flag post").}

 

Defendant learned of those messages, investigated them, found other issues with Plaintiff's on-the-job conduct, and terminated Plaintiff based on its purported findings that Plaintiff's negative interactions with subordinates irreparably damaged her ability to supervise….

[1.] Under Colo. Rev. Stat. § 24-34-402.5:

It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours….

This law "was meant to provide a shield to employees who engage in activities that are personally distasteful to their employer, but which activities are legal and unrelated to an employee's job duties." … Plaintiff contends she was terminated because of her private activity in posting material to her own Facebook account….

[T]he record contains … evidence Plaintiff was terminated for her Facebook activity…. The termination letter dated October 16, 2017 begins with the statement that Plaintiff posted "inappropriate and racially insensitive" material to her Facebook account. It states that this posting "was a clear violation of our United Social Media Policy and the [UAL] Guidelines." It informs her that, as a result of the Facebook post, she was being disciplined and investigated. The letter also accuses Plaintiff of "continu[ing] to deny that the racially insensitive Facebook post was inappropriate and that there was anything wrong with posting the racially offensive video on Facebook, where a number of your direct reports could see it."

The point is that this is the employer's political discrimination—like the discrimination against us by payment processors, and against Jared Taylor by Twitter—and that's illegal in Colorado, as well as California, where many major Tech Totalitarian companies are headquartered.

Volokh writes

For more on the state statutes like those discussed here, see this article (and in particular pp. 313-15 on the potentially broad scope of "political activity," as extending beyond election campaigns).

Note, by the way, the date on which this woman posted in support of her Rebel High School mascot--August, 2017. That was the date of the Unite The Right rally in Charlottesville, which inspired what Patrick Cleburne called a Post-Charlottesville pogrom. This woman was one the victims of that.