July 29, 2020

What Employers Should Do If an Employee Makes a Racist Statement Online

Given renewed national attention on issues of racial equity and justice, employees and customers might be more inclined to report incidents of racism they witness in person or on the internet. In this article, we cover some recommended practices for employers if they receive a report that an employee has made a racist statement online.

Don’t ignore it
We recommend responding to the report, whether it’s made by an employee, customer, or vendor. Not responding could lead to an escalation of the situation. First, the offending post might be shared widely and result in additional pressure on you to take action. Second, not responding right away (or after additional complaints) could lead people to believe that you don’t take racism seriously, harming the company’s reputation. Third, and arguably most importantly, if an employee is making racist statements outside of work, they may also be making them at work, which could damage your efforts to create a respectful and inclusive workplace, and ultimately result in a complaint. For these reasons, it’s best to take action right away. We do not, however, generally recommend monitoring the social media activity of your employers, which may be perceived as an invasion of privacy and may expose you to protected information about employees (e.g., their membership in a protected class).

Investigate promptly
Inform the person who reported the statement that you will investigate the situation. From there, review the details of the comment, confirm it is actually your employee, consider the severity of their message, and evaluate whether or not it could be considered a violation of your harassment or discrimination policy. Assuming that the statement goes against your company’s policies, meet with the employee to explain your concerns and inform them of your decision regarding the consequences of their post.

Our general recommendation is to take action in proportion to the severity of the statement. If it’s something they would have been terminated for had they said it in the workplace, termination should be considered. If less severe, you might want to consider a formal warning or requiring an employee to attend anti-discrimination training.

Laws to keep in mind
Section 7 of the NLRA protects employees when discussing the terms and conditions of employment. This includes, for example, wages, hours, and treatment from management. If the statement you’re investigating was not related to work, then it is not protected by Section 7.

Some states have employment protections for lawful off-duty conduct or political affiliations. These don’t prevent you from disciplining an employee for racist speech, but they do make it important that you be able to show (and explain to the employee) that their off-duty post violated your policies. Discipline and termination always come with some risk, but you can reduce that risk by having documentation that shows the legitimate business reason for the discipline or termination.

The First Amendment to the US Constitution does not protect employee speech in private-sector workplaces. In other words, unless you’re a public agency, the First Amendment is not relevant at work.

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