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07/11/2018

By: Michele Fisher, Partner

It is well known that employers have legal obligations to ensure the workplace is free from discrimination and harassment. Notably, a growing number of companies have been taking measures against their employees who engage in behavior outside of work that is offensive, discriminatory, and reflects badly on the employer.

For instance, USA Today reported this past weekend that in Memphis, Tennessee a property manager was fired after she called police on an African American man simply because he was wearing socks in a community pool. The property manager’s termination came after the man’s girlfriend posted a video to Facebook that went viral, showing the woman calling police.

According to the news article, the couple and their two godchildren were enjoying the pool when the incident happened. The man was dangling his feet in the water while wearing socks. When police arrived, the group left the pool voluntarily.

Similarly, in Winston-Salem, North Carolina over the 4th of July a man was terminated from his day job and pool chairmanship after allegations he racially profiled an African American woman at a pool. Police responded and confirmed the woman was authorized to use the pool and that no crime had been committed. This too was captured on a cell phone video that went viral.

Last year, the country saw employers taking similar action against their employees after images of white nationalists rallying in Charlottesville, Virginia circulated on social media. Immediate efforts ensued to expose the white nationalists, with several being shunned by family members, and others being fired from their jobs when their employers learned their identities.

The right to “free speech” generally will not protect employees from being fired for such offensive conduct. While those who work in the public sector, e.g. for government agencies, have certain protections from being fired for expressing their political views, if a public employee’s actions are an “issue of public concern,” for example if a police officer is a member of a racially hostile group, that employee can be fired despite having protections for other forms of free speech. Employees working for private companies do not generally enjoy the same protection for conduct that occurs outside of the workplace, absent a contract or state law providing it (e.g., some states have laws an employee cannot be fired for lawful activities outside the workplace, such as smoking).

Social media will continue to put increased pressure on companies to take action in response to all forms of discrimination and harassment regardless of where it occurs, or risk public outcry, boycotting, or shaming. It has also made it easier for employers to learn about behavior that is contrary to the beliefs and values at the core of their business models and human decency.

At Nichols Kaster, PLLP, we fight for the civil rights for all people. We oppose discrimination both inside and outside of the workplace.