Employment law: Dealing with race discrimination complaints following the Black Lives Matter movement

Introduction The recent tragic death of George Floyd and the Black Lives Matter (BLM) movement has highlighted the need to tackle race discrimination in the workplace. Many businesses both in the UK and worldwide have made public statements reinforcing their commitment to equality and the BLM movement. Just as the #MeToo movement raised awareness of sexual harassment and discrimination in the workplace, recent events should be the catalyst for a renewed emphasis on preventing and tackling race discrimination and ensuring that BAME employees are supported in the workplace. Employers are likely to see an increase in the number of race discrimination complaints because of the renewed emphasis on racial equality. These present various challenges for employers to deal with. How should an employer deal with an employee who has made statements on social media? Can an employee be disciplined for attending a rally? Can an employee be disciplined because of his or her actions outside the workplace? How should an employee deal with a generic and/or anonymised complaint about race discrimination in the workplace? These are all difficult questions for employers. Conduct outside the workplace Recently, we have seen employers taking disciplinary action against employees whose conduct outside of work breaches their policies and/or adversely impacts upon their business. For example, in the US:

•  The dismissal of a female employee of an investment firm who called the police after a black man asked her to put her dog on a leash in New York City's Central Park.
•  The sacking of workers who were identified as participating in the Charlottesville riots and shouting anti-Semitic comments, including one who was wearing a company uniform.
•   The dismissal of a PR Executive who posted while on vacation on her personal Twitter account before leaving for South Africa: “Going to Africa. Hope I don't get AIDS. Just kidding. I’m white!”

Often the employer’s response will depend upon their social media/disciplinary/equal opportunity policies. Conduct outside the workplace which fundamentally conflicts with these policies or brings the employer's business in disrepute justifies disciplinary action. Each case will turn on its own facts, but employers should consider the following action points when dealing with complaints regarding conduct outside work including:

•  Does the employer have a social media policy which covers conduct outside the workplace?
•  Is the employee's speech offensive and/or in breach of the employers discrimination/harassment policy?
•  Is the employee engaged in or promoting violence?
•  Is the employee representing the company when making the statement e.g. wearing a company uniform, stating they are employees of the company etc?
•  What position does the employee hold?
•  How has the employer treated other employees who engaged in such conduct in the past?

General points of action Employers should also consider the following general action points in light of recent events including:

• A statement from a senior member of the management condemning the recent acts of racism, reaffirming that all employees will be treated with dignity and respect regardless of their background and encouraging employees to report any conduct which breaches the employer’s discrimination/harassment policy.
• Reiterating if employees breach the company’s discrimination/harassment policy they will be subject to discipline, including termination of employment.
• Reviewing the employer’s discrimination/harassment policy to include specific examples of conduct that could amount to racial harassment including displaying swastikas, Confederate flags or other racist symbols, as well as ‘friendly’ banter that could be perceived as having racial undertones.
• Whilst recognizing employees have rights to discuss workplace issues, highlighting discussions about non-workplace issues such as religion, politics and current affairs can lead to misunderstandings and disagreements.
• Provide anti-discrimination training to employees in particular managers focused on racial harassment, in person (if practicable) or on-line platforms.
• Consider appointing an equal opportunities officer/committee which reports to a senior member of management that will address diversity issues, and to whom employees can address complaints in addition to Human Resources, including anonymous complaints.

Dealing with general complaints of race discrimination and anonymous complaints General complaints about an employer’s discriminatory culture or practices which are not specific, should still be investigated. Employers should consider exploring the allegation with the complainant in more detail to enable a full investigation to be carried out. If that is not possible, a more general cultural investigation might be appropriate to discover any truth behind the allegations. An internal investigator from an outside department could be appointed to speak to a small group of employees on a confidential basis to find out their experiences, or a survey or an anonymous phone line could be used to obtain further information. Alternatively, an external investigator might be appointed for the same purpose. Employers face difficult challenges when dealing with anonymous complaints. They may understandably be cautious and concerned about the source of the complaint particularly when it is not clear who/where it has come from. This does not mean the complaint should not be taken seriously and potentially investigated. Contact may be made with the individual despite their anonymity and the complainant may then be willing to speak provided the employer protects their confidentiality. If this happens, an impartial person will need to be identified to investigate the allegations preferably an external investigator. The complainant will need to be assured that their anonymity will be protected and any victimisation will not be tolerated. The above actions points will not only increase employee morale and productivity, it may also assist in defending claims for race discrimination or harassment.   Tariq Sadiq