Labor / Employment, On The Job

What To Do If You Have Hired A Bigot

And what should employers do if they learn an employee was involved in an event bringing them bad press?

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From time to time, employers call our offices with problems about employee behavior related to bigotry. An employee who refused to take off a cap with a Confederate flag is one of my favorite stories for this type of situation. He ended up losing his job over a hat.

Most employees seem to understand that they should not do offensive things in the workplace. Most. But where this situation gets more difficult is when something happens, it isn’t at work, but it comes painfully to the employer’s attention. I imagine that at quite a few companies yesterday had to deal with this issue, because the Charlottesville tiki-torch bearers didn’t hide their faces, and made their opinions plain for all to see.

An Employer Learns The Truth

Social media is a fickle beast. One day you are riding a sea of likes, and your chicken restaurant is the darling of the town. The next, people threaten to boycott you because one of your servers thought it was fun to walk around carrying a Nazi flag.

The best-case scenario here is a company gets a call from a customer with all the facts. But the most likely scenario is the company is left to figure out just where all of the community anger comes from.

Some companies don’t care. They have high-profile CEO’s who do unpopular things because their customer base can withstand it, their product is that good, or they care more about the man than the mission. But most companies can’t be cavalier about their image. If an employee harms the brand, something must be done.

A (Sometimes) Tough Decision

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I once had an employer have to terminate their best-performing employee because of scandalous behavior outside of the workplace. This type of termination is fraught with problems for many reasons: morale, performance concerns, workplace relationships, etc. But this was once in a decade. The truth is, most of the Charlottesville tiki-torch bearers were not good employees. Their decision to be involved in that event shows they care more about other things than their own futures. The best employees are long-term thinkers.

So what should an employer do if they get word that their employee is involved in an event that brings them bad press? Here are a few concerns to keep in mind:

  1. Learn as many facts as you can before making the decision to discipline or terminate. The Charlottesville tiki-torch event is fortunately a rare type of situation for an employer to encounter. The most common is a social media error in judgment. But social media may not belong to the person with their picture beside the name. Rarely are there clear pictures of someone doing the bad thing that has lead to the awkward moment at HR. So an employer should be sure to get as many facts as possible before a decision is made. However, if, as is often the case, this is an employee with a pattern of behavior, remember you are likely in an at-will state, and people who do carry around Nazi flags can be terminated for any reason or no reason at all, including carrying around the Nazi flag.
  2. Be uniform in your approach. I use the example of the best-performing employee because it is important. If an employer doesn’t want their decisions second-guessed by the EEOC, they should be consistent with how people are treated. Don’t be afraid to take a zero-tolerance position on bigotry. If you sell widgets, you want to be known for selling widgets, not for the Confederate flag hats your employees wear. Bigotry is a violation of the anti-harassment policy that every employer should have. And violation of an anti-harassment policy can result in termination. Follow the policy for everyone.
  3. Seek legal guidance if it feels really hard. Sometimes bigotry runs up against other issues at work. Sometimes an employee uses a racial slur after she complained about sexual harassment or unfair treatment based on gender. If you run into a thorny issue like this, get your employment counsel on the phone (or call up the employment counsel for your business unit in-house). Talk the issue through with them. It is likely that you still need to terminate (the situation I saw, the employee used the n-word and did so more that once. Pro-tip: saying you are being discriminated against isn’t license to be a total jerk at work). Talking through a termination with an employment lawyer can help you see what the issues are, and potential pitfalls, and allow the term to go as smoothly as possible.

I am flabbergasted that people would run around donning Nazi and Confederate flags (right beside the U.S. flag!) without any thought for what this means for them after the event is over. People on both sides of my family fought in WWII.

I am saddened because it appears many of the Charlottesville tiki-torch bearers were very young, and will have to live with the impact of their choices for years to come. Actions have consequences. Open bigotry by an employee is bad for an employer, bad for business, and definitely a reason to hand out pink slips. And these types of actions can harm job prospects for the rest of a person’s life. Just as errant tweeters. For every young person reading this: think before you act about the impact of your consequences. Despite how you feel about the current administration, it will be replaced with another. The laws regarding discrimination in the workplace will continue to exist, however. And if your conduct could be seen to break them, you will be fired or even not hired. Baggage is a very bad thing to take on a job hunt.

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beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

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