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How Employers Should (And Can) Respond to Occurrences Like Charlottesville

By Scott Cruz

The recent tragic events in Charlottesville, Virginia and other on-going activities of white supremacists and similar groups have served as a rude awakening for many and, in particular, employers.  Employers should be concerned about finding themselves saddled with employees who are identified as belonging to groups who express views that are contrary to the Company’s principles. Participants in Charlottesville’s “Unite the Right” rally have been identified in social media, resulting in the highly publicized firing of Cole White from his job at a Berkeley, California restaurant.

Knowingly continuing to employ individuals with racist or discriminatory views could expose employers to discrimination and harassment claims by other employees. Open expression of racist or other bigoted views in the workplace could give rise to harassment and hostile work environment claims. Moreover, the open expression of bigoted views outside the workplace may potentially be used as evidence of discrimination, if the person expressing such views participates in or influences employment decisions.

Except in a handful of jurisdictions, no law prevents the firing of a private sector at-will employee on the basis of his or her speech or political views.  First Amendment free speech rights generally do not apply to private employers.  However, if the politically incorrect activity by a non-supervisory employee is intertwined with advocacy for labor issues occurring in the workplace, it could be protected under the National Labor Relations Act.  In most cases, expressions of racist or bigotry viewpoints are not entitled to legal protection and may constitute a legitimate reason for termination.

Even in the absence of legal protections for employee hate speech and violent political activity, preventing such conduct from occurring is in every employers’ best interest. Therefore, employers should review their personnel manuals, employee handbooks, and technology-use and social media policies to ensure that employees are on notice that advocating racial hatred, even outside of work can reflect on the employer’s public image; and that therefore, the expression of bigoted, harassing, or discriminatory views may result in termination even if it occurs during an employee’s private time and off of employer property. Employees should further be warned that use of the employer’s computer systems to view or transmit bigoted propaganda is forbidden.

Further, employers who have not conducted workplace harassment training in the past year should consider doing so as soon as possible. This training should emphasize the fact that illegal workplace harassment includes not only sexual harassment, but also harassment on the basis of race, sex or religion and any other protected category in the employer’s jurisdiction. Training should also emphasize the employer’s complaint process, and that retaliation against any complaining employee is prohibited.  Clear policies, thorough training, and robust harassment investigation procedures are important tools, both to reduce the risk of liability and to reaffirm the employer’s commitment to maintaining a work environment that is respectful and inclusive of diversity in today’s environment.

If you have any questions and/or would like to conduct a comprehensive workplace harassment training program, please contact Clark Hill PLC attorney Scott Cruz at (312) 985-5910 | scruz@clarkhill.com.