The global response to George Floyd’s tragic and shocking death and other recent acts of injustice (including those involving Ahmaud Arbery, Christian Cooper, Breonna Taylor, and Nina Pop, among others) and the ensuing protests and riots amid the COVID-19 economic crisis have affected businesses directly or indirectly. As the current events continue to unfold, employers may face a plethora of related workplace issues. You should be prepared to respond.
Just as the #MeToo movement raised awareness about the prevalence of sexual harassment and gender discrimination in the workplace, the recent shootings and protests should be the catalyst for a renewed emphasis on preventing racism and discrimination and offer employers an opportunity to show all employees they are respected and supported at work.
Under the circumstances, employers may face a myriad of challenges in handling internal complaints and their employees’ external conduct. Often, what an employer can, should, or cannot do isn’t always clear. While employees are legally protected from being fired based on discrimination, employers are now grappling with broader issues:
- May I fire an employee based on statements made on social media?
- May I discipline an employee for attending a rally?
- May I demote a manager for actions committed outside the workplace?
All are difficult questions. Often the response will depend on the facts of each situation, company policies, and consistency in discipline.
A growing number of employers are taking action against employees whose conduct outside of work violated their policies or adversely affected the business. A PR executive was fired after posting the following message on her personal Twitter account before leaving for a South Africa vacation: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” Here are additional examples:
- A government contractor was forced to resign after she was photographed giving President Donald Trump’s motorcade the finger.
- A worker was terminated after he authored an internal memo claiming genetic differences made women unsuited for tech jobs.
- Multiple workers were fired after being identified as participating in the Charlottesville riots of August 2017 and shouting anti-Semitic statements (at least one was wearing a company uniform).
While some states (California, Colorado, Louisiana, New York, North Dakota, and the District of Columbia, among others) limit employment actions against employees for engaging in legal activities outside of work, discipline or discharge may still be warranted if the action conflicts with the employer’s policies or business. Caution and consistency are the key.
Here are actions employers should consider in light of the recent racial unrest:
Company declaration. A high-level officer should issue a statement denouncing the recent acts of racism and underscoring that all employees should be treated with dignity and respect. In addition, remind employees to report any actions in violation of your discrimination/harassment policy or code of conduct to the company’s HR department.
Policies and procedures. Revisit your company’s policies and procedures and draw special attention to their prohibitions against racial harassment and discrimination. The policies can include specific examples of actions that could be considered racial harassment in the workplace, including:
- Brandishing Confederate flags and symbols, swastikas, or nooses (yes, there have been cases this century in which nooses were left at the workstations of African-American employees); and
- Engaging in “friendly banter” that could be perceived as having racial undertones.
Outline the company’s recognition of employees’ rights to talk about workplace issues, while underscoring the fact that discussions about nonwork issues such as politics, religion, or current events aren’t productive, can lead to unnecessary disagreements affecting morale, and are discouraged.
Include a clearly written statement that employees who violate the company’s discrimination/harassment policy will be subject to discipline, up to and including termination.
Fresh acknowledgement. Remind employees about the company’s discrimination/harassment policy and require them to acknowledge their understanding and agreement to abide by its terms.
Employee training. If you (1) haven’t recently provided antidiscrimination/harassment training or (2) focused the instruction almost exclusively on sexual harassment, you should conduct in-person (and/or Zoom or other video) training and zero in on preventing all forms of discrimination or harassment.
Diversity officer/committee. Appoint a diversity officer/committee to address and make recommendations to management on race and gender issues. Employees can take complaints to the diversity officer in addition to HR. Consider implementing a hotline so employees can make a complaint anonymously if they choose.
Providing diversity training to employees, particularly managers, can help them to understand and celebrate the differences that make your organization successful.
Prompt investigations. Respond to complaints (internal or external) by immediately investigating and taking appropriate action. In dealing with outside-of-work statements or actions, consider the following:
- Do you have a social media or off-duty conduct policy?
- Is the employee being critical of working conditions that could be protected by the National Labor Relations Act (NLRA)?
- Is the employee’s speech overly offensive, or would it impede the company’s ability to comply with its discrimination/harassment policy or prevailing law?
- Is the employee engaged in or advocating violence?
- Does the conduct or speech cause disruption in the workplace?
- Is the individual representing your organization when making the statement (e.g., wearing a company uniform or stating he is an employee)?
- What position does the employee hold?
- How have you treated other employees who engaged in similar inappropriate conduct?
The actions you take during these critical times can define your business to employees, vendors, customers, and the public. Positive actions affirming your company’s commitment to workplace diversity can not only increase employee morale and productivity but also assist in defending against any claims alleging race discrimination or harassment.
In light of the renewed emphasis on racial equality, you can expect to see an increase in the number of employment claims. Take care to evaluate each employment decision independently and objectively based on the facts presented and your business needs. Before taking any action, partner with an employment lawyer experienced in diversity and inclusion to help you navigate the troubling waters successfully.
Dawn Siler-Nixon is the diversity and inclusion partner for FordHarrison LLP and a partner in the firm’s Tampa office. You can reach her at firstname.lastname@example.org. Wesley C. Redmond is a partner in the firm’s Birmingham office. You can reach him at email@example.com.
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