All employers aspire to create a safe workplace free from harassment and discrimination. So, it is unfortunate when employers encounter symbols of hate in the workplace. These offensive items include swastikas, nooses, unequal signs, confederate flags, inappropriate cartoons or images, or other symbology and racially hostile slogans. Displaying or allowing the display of racially offensive content can subject an employer to a claim for hostile work environment.

It falls to the employer to “do the right thing” to address the appearance of such symbology in the workplace. In an instance where an employer should encounter a race-based, or otherwise offensive symbol in the workplace or beyond, consider going back to the basics by investigating before acting. Before handing out discipline, investigate the allegedly offensive conduct instead of relying on employee reports alone. Appropriately crafted policies will help an employer support and inform such a thorough investigation. Employers can consider using an independent third-party investigator to display even more even handedness in their actions; especially where members of the executive team or the HR team might be involved in the facts of the complaint.

Some employees may argue that they have a First Amendment right to express their political views or that the display of the Confederate flag – or other symbol – is a political statement unrelated to slavery or racial animus. However, the First Amendment does not apply to employees in a non-governmental workplace and despite the subjective intentions of the employee sporting the confederate flag on a piece of clothing, decal or otherwise, other employees may reasonably assume motives racially hostile or, at least insensitive. However, employers ought to remember that in some states and localities, “political affiliation” or “political ideology” is a protected class. Thus, employers must be careful that the offensive material is not directly tied to an employee’s political affiliation. Likewise, some states prohibit terminating an employee for lawful off-duty conduct.

It is also worth noting that certain behaviors depending on their subject and actual or intended audience, may be protected under the NLRA because they constitute protected concerted activity or may be protected conduct under a state’s legal activities law, in which case the employer may be limited in what it can do in response to the behavior.

Finally, when it is necessary to respond to an incident of racial hate in the workplace, company’s leadership may also want to coordinate with counsel to develop messaging for internal and external audiences. In doing so the Company gains the advantage of walking the talk for being transparent and living its Inclusion, Equity & Diversity values. Such messaging is also a great tool to ensure that employees see the company’s policies in action, so they are more likely to use them to report any future issues.

Source: Littler Mendelson PC – Alyesha A. Dotson

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