Racist Comments Made Outside of Work to People You Don’t Work With

It’s clear that your employees can’t make racist remarks at work or direct them toward coworkers. If an employee does this, he can be disciplined or fired. What if the remarks are put in writing while an employee isn’t at work and mailed to random people across the country? Can he still be disciplined or fired?

As reported by the Columbus Dispatch, there’s a new lawsuit that may provide an answer. An employee of the U.S. Customs and Border Protection Agency was fired after he sent letters with racist comments to hundreds of college students at Ohio State, Notre Dame and the University of Rhode Island. He’s filed sued, claiming that his discharge violated his free speech rights.

The Agency said the employee’s conduct violated its standards of conduct. The employee says there’s nothing in the standards of conduct addressing this kind of thing. In addition, he stopped sending the letters as soon as his supervisor told him to stop.

Three issues jump out immediately. Does an employee’s free speech rights away from work trump a workplace policy that would prevent this speech at work? Does the Agency’s standards of conduct apply to this situation? Can you fire an employee for this kind of off-duty conduct?

In my opinion, the answers aren’t all that clear-cut. I’m inclined to think that if an employee’s conduct brings embarrassment to his employer in a highly public way, that’s grounds for termination, particularly given the volume of correspondence sent by the employee in this case. He was employed by an agency of the federal government, which is duty-bound to prevent workplace harassment and discrimination. But all employers have this obligation. And all employees have free speech rights, but not without any limitation.

So, I’m not sure how this case will turn out. I would bet on the employer. And if you’re ever faced with this kind of situation, you need to make sure the employee stops what he’s doing (like the Agency did in this case) and then consult with your labor and employment counsel about how to handle the employee’s future with your company or organization.