Over the past month, I have been asked whether I am being hypocritical by, on the one hand, handling Jordan Peterson’s appeal from the order imposed by College of Psychologists of Ontario restricting his freedom of speech and right to post politically contentious material, while, on the other, advising employers of their right to fire employees for attending rallies involving hate speech and making anti-Semitic media posts.

Is my position on the Peterson appeal inconsistent with my avowal not to hire any of the students at Toronto Metropolitan University’s Lincoln Alexander School of Law who signed an anti-Semitic petition, or their fellow travellers who publicly supported them?

The answer should be obvious.

One should not conflate Charter-protected rights to speak and debate freely with either criminal hate speech or speech in violation of human rights legislation. The latter can land you in jail or paying significant awards and does not have the provenance of legal discourse.

But, more to the point, one can never conflate debate and speech in the public sphere with speech in the workplace. And the scope of the “workplace” has dramatically expanded over the last several years to include speech anywhere which impacts on your employer.

A public relations rep of one northern community was found to be properly fired for cause for posting embarrassing pictures of her local community in the early days of social media. The reason for that is obvious. She conducted herself in direct violation of the very purpose of her job. In the significant Ontario Superior Court case of Kelly vs Linamar, an employee was properly fired, not for what he said, but for his conduct in downloading child porn in the privacy of his own home. Even though the activity had nothing to do with work, the court found it indeed had a bearing on his employment: his conduct could attract adverse publicity to his employer and make it more difficult to continue to comfortably perform its work with children’s charities.

In the same way, in my own firm, if someone made statements inimical to indigenous Canadians, it would be cause for discharge both because that would violate human rights legislation (rather verboten for an employment law firm) and because of my own donations to indigenous affairs at the University of Toronto.

Anything that could damage the brand of your employer can be potentially cause for discharge if it is serious enough and that employee is seen as associated with the company. In other words, social media posts which would likely not be cause for discharge for someone in the mailroom may well be for a worker who is client-facing, public-facing or in management. Hence my statements that it is cause for discharge of an employee in any such position to attend our current hate speech rallies or to make anti-Semitic (or Islamophobic — much less common at the moment) posts and my offer to defend any employer sued by such a fired employee pro bono as my own contribution to the fallout from the Gaza war.

Hate speech does not merely provide the subjects of that hate in the workplace with a human-rights claim against the miscreant (and often the employer for tolerating it). It also provides the employer itself with the right to fire that employee for cause without severance, both because it subjects the employer to a human-rights claim and because it damages morale in the workplace, endangers the company reputationally with its clients and suppliers, and limits its ability to recruit new hires.

What if the speech is not necessarily hateful but takes a position contrary to the employer’s clients? I was consulted this week by a firm with many Israeli clients. One of its employees was posting material online which, although not hateful and thus not clearly cause for discharge, would inherently antagonize those clients and limit its ability to attract others.

That might not be cause for discharge without severance but it surely is good reason to fire that employee. My advice was to discuss that with their employee and tell them to take it down. If they refused to, knowing it was damaging to that employer, it could well be cause for discharge. In other words, even legal speech might be antithetical to a continued employment relationship and therefore fundamentally repudiate it.

In analyzing an employee’s social media posts to determine whether it is cause, one should review whether the impugned comments are anomalous or part of a pattern and whether they contravene any social media policy of the company itself. This is a good reason for every employer to have a social media policy, something which our firm has been busily drafting over the last month for its clients. The employee should always be asked to take the postings down prior to firing them unless it is so egregious that no warning or admonition is necessary.

Some of my clients have taken the position that it does not wish its employees to post anything politically controversial. Even more have prohibited political speech, of any kind, in their workplaces, on the basis that the workplace is for working and anything which fuels fury, animosity and resentment is antithetical to that. A good motto indeed.

Peterson’s case involves something entirely different. It is about weaponizing his non-Canadian political enemies — who have never even met him, let alone been his patients — and allowing them to complain about his political comments to his professional regulatory body, which is supposed to be regulating the practice of psychology by protecting patients from malpractice by their psychologists. Ironically, and to the point of this column, as a result of the College of Psychologists’ disciplinary decision about his social media posts, the College has now received three complaints from non-patients about his comments on the Gaza war, as fitting an illustration as one can find as to the perniciousness of the College’s ruling.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.