DEALING WITH RACIST CONTENT POSTED BY EMPLOYEES ON SOCIAL MEDIA

What are companies doing about employees who post content on social media that is inflammatory, derogatory, offensive, or racist?

This is a fraught question—one that comes up consistently in conversations, chat threads, in emails, and even LinkedIn posts—many of us are thinking about this and asking ourselves (and one another):

How should employers respond when employees post aberrant content on their private social media accounts? What is the best policy? What should be in the policy? What are the parameters? Who decides what is inflammatory, derogatory, offensive, or racist? Where are the lines? How do we know when those lines are crossed?

The issue of social media (a relatively new quandary) and what employees do in their off time raises many complex questions for employers, and there are obviously no easy answers.

This week’s pulse survey conducted by the Institute for Corporate Production (i4cp) included a question that asked 107 business professionals about their organizations’ policies (if any) regarding how racist comments or content posted by employees on personal social media accounts are handled.

Racist Social Media Posts

Not surprisingly, most (51%) said that their organizations take an investigative approach—looking into the post(s) in question and making decisions based on what they learn.

But what was a bit of a surprise was the number of organizations that currently have no policy that addresses this at all (23%).

A few survey respondents noted in their comments that while their organizations’ stated core values and guiding principles are clear and reinforced to the workforce often, they aren’t sure what their organization’s policy is on racist social media posts.

“We always say ‘we don't tolerate intolerance,’ but specific to social media postings etc.—it’s unclear,” one wrote.

“While we don't have a policy that specifically addresses personal social media, our practice is zero tolerance,” wrote another.

Not having a policy can result (worst case) in irrevocable damage to an organization’s brand—i4cp’s research has shown that lower-performing organizations are more likely to remain silent when it comes to taking a stand on political or social issues. Not saying anything—which itself sends a message—can be as detrimental as having employees posting terrible things on an account that mentions they work for you.

And while a few of those surveyed (7%) indicated that their organizations indeed have a social media policy that pertains to racist comments or content, it is applied inconsistently—this is a problem too because inconsistency can look like bias, lack of genuine commitment to anti-racism, and even silent agreement.

Asked one participant: “Even if we [HR] don’t like some of the content our employees post that’s brought our attention, isn’t firing someone over it violating their First Amendment rights?”

The answer is no—at least not in the private sector.

According to a group of employment attorneys who specialize in Diversity & Inclusion, “The First Amendment specifically prevents the federal government from interfering with freedom of speech, but it doesn’t guarantee that right in private settings, including private workplaces. So, a private-sector employee’s comments (whether made in person or in writing on social media) are not protected from consequences such as losing their job under the guise of freedom of speech."

But it all comes back to your organization’s culture, and the setting of clear expectations of behavior.

If your organization has gotten started on creating a social media policy, but plans to at some point, this is a conversation that should include guidance from legal counsel.  

Resources:

Social Media Posts During Turbulent Times: FAQs on Employee Rights and Employer Responsibilities

National Law Review: ‘You are my Employer, not the Thought Police’ – Employee Online Activity in a Time of Turmoil

National Law Review: Do Not Cut and Paste - Why Your Company Needs Tailored Social Media Policies and Procedures