Employee makes racist Facebook posts, and company must pay him $100,000. Yep, that’s it.
How’s that work anyway? Everton Bailey, Jr., writing at the Oregonian, explains:
The city was ordered in July to pay at least $100,000 in back pay to former officer Tom Newberry. The arbitrator, Portland-based attorney Eric Lindauer, concluded that Newberry’s firing in February 2017 was justified….
[wait for it…]
But he also ruled that the city should bear some financial burden because Newberry’s social media use was common knowledge in the police department. The then-police chief and several other high-ranking officers did nothing to address the behavior until it was reported by the media in July 2016.
Now, here’s the thing. This fact pattern involves a public-sector employer, presumably unionized, and an arbitration. So, we’re talking about a set of facts that most of you are unlikely to recreate in your workplace.
Indeed, in a private sector, union-free, at-will employment setting, you can fire an employee for any reason or no reason at all, except for an illegal one (e.g., discrimination). So, racist Facebook posts would certainly do the trick — even if you waited until after the media reported about them. And there would be nothing that the separated employee could do about it.
Except, if you know about an employee’s online racism and tolerate that sort of behavior, then you’re not considering the bigger picture. The bigger picture is that you are sending the clear message to the rest of the workforce that you condone racism.
So, when that racist employee eventually brings his or her ignorance back into the workplace and targets a person of color — because that’s what’s eventually going to happen — how will you explain your inaction to the victim?
Better yet, how will you explain that to the jury after the victim brings a hostile work environment claim?
Fostering a workplace culture that does not tolerate discrimination means creating accountability and applying zero tolerance for that behavior both in and out of the office, both on and off the clock.