Can An Employer Fire an Employee for Making Unpopular Public Comments?
September 23, 2025
By: Colin A. Walker
In the wake of the assassination of Charlie Kirk, there has been a wave of commentary on the Internet and elsewhere. Some of it is critical not of the killer, but of the deceased. Regarding this as insensitive, callous or otherwise inappropriate, many employers have considered taking action against employees who make such statements in public. Famously, ABC suspended Jimmy Kimmel from his late-night talk show (possibly under pressure from the FTC; the propriety of a government agency trying to influence that decision is beyond the scope of this post). But, is it lawful to terminate or take other adverse employment action against an employee because of public comments the employer regards as inappropriate? It’s complicated.
While employment in almost all states is at-will, meaning the employee and the employer both have the right to end the employment relationship at any time, without prior notice, for any reason, or no reason at all, there are exceptions. Most states have laws which prohibit employers from terminating employees for off-duty activities which are lawful and unrelated to employment. This would apply to a myriad of lawful off duty activities which might tempt some employers to terminate employment, such as smoking, drinking alcohol, and firearm ownership. If the lawful activity is conducted off duty and off the employer’s premises, it could be protected and not a lawful basis for termination. On the other hand, if it occurs when the employee is on duty, or on company premises, it would probably not be protected.
In Oransky v. Martin Marietta Materials, Inc., 400 F. Supp. 3d 1143, 1146–47 (D. Colo. 2019), the court held that Colorado’s lawful off-duty activity law (C.R.S. § 24-34-405.5) did not prohibit an employer from terminating the employment of an employee who made negative comments about the employer’s customers. The employee worked in sales of products to oil and gas customers. The employee made comments critical of oil and gas companies in a public meeting and online. Concerned that such activities might harm its business relationship with its oil and gas customers, the employer terminated the employee. The employee sued under the Colorado lawful off-duty activity law.
The court began by explaining that the law’s purpose 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 duties.” The law provides exceptions where off-duty activities are reasonably and rationally related to the employment activities of a particular employee or where action by the employer is necessary to avoid a conflict of interest or the appearance of a conflict of interest. By contrast, off-duty activities that are not in direct conflict with the essential business-related interests of the employer cannot be restricted. The court found that the employer’s belief that the employee’s behavior could harm its relationship with its customers was reasonable and rationally-related to the employee’s duty to maintain good relations with customers, and held that the law did not prohibit the termination.
How might this apply to comments about the assassination of Charlie Kirk? Let’s take the suspension of Jimmy Kimmel as an example. Mr. Kimmel made the comments in question while employed by ABC and while performing his duties of hosting the late-night talk show. If ABC thought his comments were imprudent, callous, or somehow inappropriate, it would have been well within its rights to terminate or suspend Mr. Kimmel (subject to any contractual provisions), just as any employer could terminate or take other action against any employee whose performance it found to be unacceptable. The issue would have been more difficult if Mr. Kimmel had made the comments while off-duty and in a way that did not directly involve ABC. In that case, ABC might have argued that his comments would have been viewed by many of its viewers as inappropriate possibly causing them not to watch its programs. To succeed on that argument (at least under Colorado law), ABC would have had to show that his activities were reasonably and rationally related to his specific employment activities.
While it may be possible for an employer to fire an employee for making public comments the employer regards as inappropriate, employers should think long and hard before doing so. Employers should not rely on the presumption of at-will employment. As evidenced by the case discussed above, the requirements of the law are often far from clear and highly dependent on the specific facts and circumstances.