Should your boss care if you’re a racist?
Racism is once again in the international spotlight following the recent events of Charlottesville in the US and the fake MiWay email debacle in South Africa – bringing with them questions as to whether an employer has a responsibility to fire someone for their racist remarks.
Johan Botes, partner at Baker McKenzie Johannesburg, says that outrage sparked by white supremacists marching in Charlottesville took a further turn when reports indicated that at least one person had lost his job after being identified as a protesting white nationalist.
“Users took to Twitter after the march to identify protesters and blast their identities over social media” said Botes.
“If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I’ll make them famous,” read one such tweet.
After discovering the name, address and workplace of one of the marchers, social media users repeatedly phoned his workplace demanding his dismissal.
They also posted online comments to the same effect. The employer, Top Dog, issued a statement confirming that the employee was no longer employed with them.
While race related drama engulfed the US, over the same weekend, the deputy minister of education was relieved from his post after a video showing him assaulting a woman went viral – resulting in his removal.
This highlights how social media is being used to devastating effect to put pressure on employers, said Botes.
This pressuring of employers to deal with unacceptable employee behaviour is likely to further blur the lines between workplace conduct and private actions, he said.
“As a general rule, employers are not able to take action against employees for their after-hours conduct,” said Botes.
“What employees do in the confines of their homes or in a social context should not have a bearing on the employment relationship.
“The notable exception to this general rule is where the employee’s private conduct has a negative bearing on the employment relationship,” he said.
This includes situations where an employee assaults a supervisor after hours, or makes disparaging remarks about his boss on social media, or commits a criminal offence that has a bearing on his role within the business – for example, an accountant committing cheque fraud.
Similarly, the Constitutional Court recently confirmed that racism remains a scourge in the country and that employers ought not to tolerate such behaviour from employees, said Botes.
“Employees who express racist views in the workplace have, rightly so, not received sympathy from the employment tribunal and labour court and are unlikely to receive any in future.”
This change in mindset and the events of Charlottesville could therefore see a possible rise in employees being “outed” for racist conduct after hours or in their private lives, said Botes.
“Employers are likely to receive support should they terminate the services of employees who are found to have committed hate speech or otherwise associated themselves with unacceptable behaviour in their private lives.
“It is unlikely that a court will force an employer to retain an employee who expressed racist views in public, thereby forcing other employees to continue working with such person as a colleague,” he said.
While this may come across as “draconian” to privacy advocates, this is a powerful tool to make such conduct un-cool and marginalise those harbouring discriminatory or regressive views, the legal expert said.
“Employers can send a strong signal to their staff and clients by ridding their workforce of such individuals.
“Considering recent events, those who don’t, may find themselves at the receiving end of a social media campaign,” Botes said.
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