What Employers Should Do If an Employee Makes a Racist Statement Online
By Emily Schlaudecker
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).
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.
Assuming that you do take disciplinary action against the employee for their comment, letting the person that contacted you know that action was taken (broadly, you don’t need to share the details) might help de-escalate the situation.
In addition to dealing with this specific employee and their statement, now would be a good time to consider addressing your entire team about expectations for professional use of social media and reiterating the company’s stance on listing you as their employer on a social media page. While we recommend against regulating an employee’s personal social media presence, you are certainly within your rights to outline guidelines and clearly communicate to your team how you’ll handle situations as they arise. Below is a sample communication you may want to consider. You can certainly edit this internal communication to suit your needs and fit your company culture.
[Company name] values our employees and their rights to privacy outside of work. With that said, it has come to our attention that some employees are making racially insensitive and offensive comments in public places on social media while having the company name publicly displayed on their profile.
Please note that [Company name] strives to maintain a diverse and professional work environment where employees, regardless of race or other protected characteristics, feel included and are free from harassment and discrimination.
While we do not monitor social media usage at the company level, in the event an inappropriate post or comment is brought to our attention, we will investigate the situation and take action as if the comment was made in a work environment.
If you choose to list [Company name] as your employer on your profile, please be aware that you may be seen as representing the company in your comments, especially on public pages and articles. We in no way require or expect you to list your work information on your social media profile, and if you intend to engage in risky or offensive behavior online, we recommend that you remove or restrict your employer and other personally identifiable information accordingly. It’s worth noting, however, that even without our company listed on your social media profile(s), the internet allows for ease of accessing such information.
Please use this time to review our social media policy for further information as well as our harassment prevention policy. If you feel you have been harassed or discriminated against at work, we sincerely ask that you report this conduct to your manager or [contact name/number], so we may investigate thoroughly and take steps to prevent further harm.