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  • Bobbi K Dominick

Let's Talk About Race Discrimination


The recent protests and media attention on the issue of race discrimination will inevitably translate into workplace issues. Like any other discrimination issues, it is critical that employers address these issues, in particular that employers thoroughly investigate each complaint. Here are some common questions:


  1. What happens when an employee for a racially insensitive, or even blatantly racist, social media post? Many employers have addressed these issues recently, both with respect to race as well as other "hot button" issues: https://www.news5cleveland.com/can-your-employer-terminate-you-for-posts-on-social-media and https://www.firstcoastnews.com/article/news/local/businesses-universities-addressing-racism-publicly/77-00bd7647-b9ee-4091-9193-a15dd2ac6269 and https://www.mercurynews.com/2015/02/18/how-to-handle-an-employees-offensive-social-media-post/ The bottom line is that an employer may not simply say: "What the employee does on their own time doesn't affect us." Much like cases in the past where sexual harassment occurred off duty or after hours, the employer still has a duty to investigate the behavior, and determine whether any workplace policies are violated (if you are in Idaho, there is no state law prohibiting consideration of off duty conduct as there is in some states). Regardless of whether the behavior happened in or out of the workplace, it may still affect the workplace and violate policy, so it must be investigated.

  2. What happens if we are a public employer, doesn't the employee have the right of free speech, and thus the right to their own opinion? The bottom line here is that the behavior must still be investigated. While employees may have the right of free speech in matters of public concern, the employer may still need to balance the rights of the employer to prevent discrimination against that free speech right. If the behavior may cause disruption in the workplace, or it might evidence outright discrimination, it must be investigated and appropriate steps taken.

  3. What if an employee is accused of attending a rally against discrimination when they should have been working? Again, this is an issue that must be investigated. What are the employer's policies about taking time off work? Would an employee be allowed to use personal time to attend a birthday party, or a social gathering, or other less controversial personal event? The focus of the investigation may then be whether the policy is applied unequally to those who support particular causes.

  4. Are there things that employers should be doing to address race discrimination before a complaint arises? There are many, many articles and discussions about steps employers should take, but in this post-George Floyd age, here is one particularly compelling perspective: https://www.pilotonline.com/inside-business/vp-ib-expert-stone-0615-20200615-iupfoqriobg3jlh2o2rj4b2jfy-story.html. Some also contend that organizations have failed to take action over many years, and must reverse that course to establish a clear intent to prevent discrimination: https://www.washingtonpost.com/business/2020/06/13/after-years-marginalizing-black-employees-customers-corporate-america-says-black-lives-matter/ We expect that we will see more complaints about race or national origin discrimination (Black, Asian and Hispanic) given current events around the George Floyd protests, the COVID-19 pandemic, and ongoing issues around immigration.

  5. Must we investigate each complaint or concern? Each complaint MUST be investigated, regardless of how trivial it might seem to the employer. If there is underlying discrimination, the employer will have to prove that it took action to conduct an investigation that was prompt, thorough and unbiased. If no action is taken, and litigation results, the employer may not have a defense.

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