Often, what an employer can, should or cannot do to prevent racism and discrimination is not always clear. While employees are legally protected from being fired based on discrimination, employers are now grappling with broader issues. Can I terminate an employee based on statements made on social media? Can I discipline an employee for attending a rally? Can I demote a manager because of his or her actions outside the workplace? These are all difficult questions. Often the response will depend on an employer’s policies, consistency in discipline and the facts of each situation.
In this guide, Expanding Non-Discrimination Policies During Times of Unrest
, employers will be encouraged to revisit the wording and content of the company’s anti-discrimination/harassment policy and procedure, and ensure that the company’s prohibition of racial harassment and discrimination is emphasized. The policy can include specific examples of actions that could be considered racial harassment in the workplace, including brandishing Confederate flags and symbols, swastikas, nooses (yes, there have been cases in this century where nooses were left at the work stations of African American employees), and ‘friendly banter that could be perceived as having racial undertones.
It is important to outline the company’s recognition of employees’ rights to discuss workplace issues, while underscoring the fact that discussions regarding non-workplace issues such as politics, religion or current events are not productive workplace time, can lead to unnecessary disagreements that impact productivity and morale, and are discouraged. Include a clearly written statement that employees who violate the company’s anti-discrimination/harassment policy will be subject to discipline, up to and including termination. Reiterate the company’s anti-discrimination/harassment policy and require all employees to acknowledge their understanding and agreement to abide by the terms included therein. To deal with behaviors outside of work, employers are encouraged to consider the following:
- Do you have a social media policy or a policy regarding off duty conduct?
- Is the employee being critical of working conditions that could be protected under the National Labor Relations Act?
- Is the employee’s speech overly offensive or would it impede the company’s ability to comply with its anti-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 employee representing the company when making the statement (i.e., wearing a company uniform, stating they are employees of the company, etc.)?
- What position does the employee hold?
- How have you treated other employees who engaged in similar conduct?