Yesterday morning, I read my friend Jon Hyman’s post on LinkedIn about a lawsuit in which a person of color alleged that various supervisors and managers:
- Frequently called him the “n-word”;
- Told him to “reach his black hands out” while handing him a box; and
- Offered him a banana while saying, “Monkeys like bananas.”
Allegedly, a group of white employees also hung a sign in the workplace that said, “WHITE ONLY.”
Those facts are shocking!
But then, in the evening, I read about a separate case, a Pennsylvania Commonwealth Court decision in which two out three judges on the panel agreed to deny a claimant’s request for unemployment compensation benefits. After all, the claimant, who is white, was fired for directing racial slurs at a black co-worker.
So, hold up!
There was a dissenting judge who concluded that the foul-mouthed employee should have received UC benefits.
Wow! But it’s not what’s you think.
Employers need to pay attention as I quote from Senior Judge Pellegrini’s dissent:
The issue in this case is not whether it is acceptable for an employee to ever use racial slurs. It never is. The issue is not whether an employer can discharge an employee for using a racial slur. It can. The issue in this case is whether an employee commits willful misconduct by using a racial slur when the employer has tolerated racial slurs in the past.
In this case, everyone – the Employer, the Referee, the Board and the majority – admits that in all other instances where racial slurs, derogatory terms, and “salty” language were used by truck drivers – all indisputable violations of Employer’s anti-harassment policy – no one was fired or even reported to someone higher in the chain of command. Willful misconduct requires an intentional or deliberate disregard of standards of behavior which an employer has a right to expect of an employee. Lack of enforcement or inconsistent enforcement does not establish such a standard of conduct with which it could reasonably expect its employees to comply….Simply, an unenforced work rule is not a work rule but a piece of paper.
Whether it’s an anti-harassment policy, an absentee/tardiness policy, a confidentiality policy, or anything else in that handbook of yours, if it’s in there, make sure employees follow it. If they don’t, counsel/discipline them. And if managers aren’t enforcing the rules, the same repercussions apply.
Otherwise, you’re just wasting paper, paying unemployment compensation, or worse
Like the lawsuit Jon wrote about.