As illustrated above, most American employees lack job security, rendering them particularly susceptible to the harmful repercussions of cancel culture. As more employers are punishing workers for non-work-related behavior, Congress should consider passing legislation to address cancel culture and safeguard jobs. One possible solution is legal off-duty conduct laws. As the name suggests, these laws generally protect employees by prohibiting discrimination for an employee’s legal off-duty conduct.
While several states have passed such laws, the scope of these laws varies significantly between each state. In addition, most off-duty conduct statutes only address specific behavior, such as prohibiting termination due to an employee’s legal use of tobacco or marijuana. Currently, only four states have off-duty conduct statutes that purport to protect any lawful off-duty conduct. However, judicial precedent interpreting these statutes is sparse, and the scope of these statutes has yet to be fully explored by the courts. In the few cases where courts have addressed these statutes, the statutes are often interpreted narrowly. For example, California’s off-duty-conduct law appears to allow employees to file a claim for lost wages as the result of receiving disciplinary action for “lawful conduct occurring during nonworking hours away from the employer’s premises.” However, California courts have concluded that the statute does not add any substantive rights for employees.
One state that offers some (albeit still limited) judicial guidance as to the potential effectiveness of these statutes is Colorado. Colorado is one of the four states prohibiting discrimination based on any legal off-duty conduct. According to the language of the statute, Colorado law prohibits an employer from
terminat[ing] the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours unless [the] restriction . . . [r]elates to a bona fide occupational requirement, . . . is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer[,] or . . . is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.
The Colorado statute is the most likely candidate to offer protection for scenarios that fit within cancel culture’s description. In interpreting this statute, the court in Marsh v. Delta Air Lines explained that the purpose of Colorado’s off-duty-conduct law is 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.” While the Marsh court narrowed the statute’s scope by holding the legal activity must be “unrelated” to the job, later decisions have favored an even broader interpretation. Based on the broad interpretation by the courts, the Colorado law likely protects activities often the subject of cancel culture.