With the recent rallies of white supremacists, neo-Nazis, and other hate groups happening around the country, it’s important for employers to understand their rights and legal obligations when it comes to hate-speech in the work place, and why having a zero-tolerance policy for discriminatory and racist speech is important for more than just moral and ethical reasons.
Employees of private employers in Oregon (as opposed to government employees) have no “free speech” right to say hateful, discriminatory or racist things. They can generally be fired for such conduct, even if it takes place away from work (including on the internet). There may be limited exceptions depending on the context in which the comment was made, so you should consult with an employment attorney before pulling the trigger on a termination, but most of the time it’s going to be okay to fire them.
It’s important that employers have a zero-tolerance policy against discriminatory and racist speech and conduct because failing to stop it can open the door to a claim for hostile work environment. A recent decision in the US Court of Appeal for the Third Circuit made clear that the test for a hostile work environment is whether the discriminatory conduct was “severe or pervasive.” Meaning that a single incident can be enough to trigger a claim depending on the severity. In that case, a supervisor told the plaintiffs, two African-American workers, they would be fired if they “n***er-rigged” a fence they were working on. The court held that the single use of racial slur by the supervisor was enough to state a claim for a hostile work environment.
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