From the syndicated ethics column by Randy Cohen:
Racist’s remarks can be cause for firing
By Randy Cohen
Posted: 08/02/2009 01:00:00 AM MDT
Q: I am a general contractor. An employee of one of my subcontractors has become very vocal about his racism. When one of my guys spoke to him about it, he replied that he was entitled to free speech and grew confrontational, almost violent. I am all for free speech, but can’t I forbid racist speech on my job site? — Name Withheld, New York
A: You should ban racist speech on the job, and if this guy does not stifle his hateful claptrap, get rid of him, a step to take all the more urgently when there is a threat of violence. You have a legitimate interest in maintaining a congenial workplace for your crews and yourself. This is something that ethics compels and the law allows; indeed, anti-discrimination law forbids your creating or allowing a hostile work environment. Jami Floyd, a lawyer I consulted, confirms that you can fire the guy for offensive speech.
We do esteem free expression and should be wary of attempts to limit it. No employer should bar employees from discussing, for example, Afghan policy or, for that matter, Jon and Kate Gosselin’s marriage, as long as those conversations do not interfere with the job and are conducted courteously, a contradiction in terms when it comes to spouting racism.
Floyd notes, by way of caution, that firing a racist employee doesn’t mean he won’t sue for wrongful termination, only that he is not likely to win an actual suit — “at least not on First Amendment grounds.” To protect yourself in such a situation, she says, “be sure to give adequate warning; to keep a written record of the offensive incidents, including the reactions of others to the remarks; and to note down any other deficiencies in the (guy’s) performance.”
Replies
Hear, hear! Get the guy out ot there.
Gary W
gwwoodworking.com
I have incorporated a section in job descriptions that includes discussion of the fact that we work for culturally diverse community and that our conversations must be appropriate at all time starting with keeping cussing to a minimum to absolutely no racist, sexist, homophobic dialogue what so ever.
Such dialogue is grounds for immediate dismissal.
Bruce
I am probably the biggest violator of the cussing part.
You're fired!View Image bakersfieldremodel.com
Man, you don't know how hard I have tried, but the JackA-- I work for won't let me go.
we have to sign a paper before entering on a job site, about that type behavior. offendive language subject, cat calls , holling, yelling, radio, music, even dress code. one guy got fired for pants around his knees
We had a guy with "True Honky" tattooed across his chest. Member of some Alabama white supremecist prison group Southern Brotherhood.
I believe that an employer has the right to limit all conversation to things that are directly related to the work at hand. This can be justified by the potential dangers of becoming distracted on construction sites. How strict he/she wants to be is up to them.
I have a rule about not taking sacred names in vain, although I don't object to common profane language, used for emphasis. Assuming that we're working outside of neighborhood earshot, of course.
As for racism, I've never tolerated remarks of that kind from employees.
Ethnic humor is another story. When it's light hearted and aimed at a crew member, it's fine by me. But there's a line that's easy for most people to recognize there too. If someone on the crew isn't comfortable with ethnic humor being directed at them, it's dropped completely, in all forms.
I've never had a problem getting any of those message across.
In the end it's about professional standards and human values which everyone should be able to relate to and practice. If not, down the road you go.
Edited 8/4/2009 12:44 am by Hudson Valley Carpenter
My jobsite is not a democracy. As long as i'm cutting the checks I dont need anyone around trash talking or threatening other workers.
Bye Bye
Family.....They're always there when they need you.
Everyone that has ever worked for me knows if you do or say anything that may cost me money that you chould just pack your bags and leave. The guys are more than welcome to have their personal opinions on their personal time. Vic
you are free to speak your mind in this country as long as you are willing to pay the costs others assign to those words. may attract some, may repulse others and cost you a relationship or job.
MANY have paid the ultimate sacrafice to allow you this freedom. if your dumba** ideas cost you a job, that pales in comparison.
tell your sub the employee's gone, or he's gone. then give him 5 seconds for his answer.
In Canada this would be handled differently but the steps remain the same.
Give the fellow a registered letter about his behaviour. Point out his right to free speech, then point out that others have a right to" quiet enjoyment" at home and the workplace.
Get other workers to document time, place, reactions, and quotes of said behaviour.
Document, document then one more time.
Get other subs to document, especially if it becomes a "cost" to the worksite.
Send registered letter to home with notice of termination with all paid up time and required paper work, depending on you local labor laws. Let him blow a gasket at home not at the job site. If he comes to the job site phone the cops.
If he thinks he can take you to court, a big file of documentation will take the wind out of his sails and if he want's to pop for a lawyer let him have at it. Once the lawyer see's your documentation he will probably not want to proceed.
Or Let your OSHA inspector hear this guy live and I believe they could boot him off the job and that will give you a layer of protection.
Or as a last resort lay every one off Friday, Call them all Sunday to show up Monday but forget to call him.
People like this as a PITA but if you don't take some action now, it may come back to bite you big time.
People in the US have the mistaken belief that they need to document, warn, etc. before firing someone.
The general rule is that you can fire anyone, at any time, with no warning, for no reason, with no explanation.
The exceptions are people with employment contracts, collective bargaining agreements or people in a class protected by law, who can't be fired for being women, brown-skinned, Episcopalian, etc. Of course, you can fire a brown-skinned woman Episcopalian Yankee fan for being a Yankee fan, just not because of the other stuff.
Finally, there are a few situations where public policy doesn't permit firing. For example, you can't fire someone for going on jury duty or telling OSHA you have an unsafe workplace.
Edited 8/4/2009 1:49 pm ET by smslaw
While you may not "need" to document, in the strictly legal sense, it is a wise precaution (and also, incidentally, a good check on your own possible tendencies to overreact to some incident). But, ultimately (and on the other side of the coin), allowing the guy to continue unchecked with his offensive (and possibly threatening) practices would amount to creating/permitting a "hostile working environment" for others and very likely places the boss in violation of workplace protection laws. At the very least it would be wise to have some sort of evidence that an attempt has been made to control the guy's behavior, even if it hasn't (yet) reached the point of dismissal.
As I stood before the gates I realized that I never want to be as certain about anything as were the people who built this place. --Rabbi Sheila Peltz, on her visit to Auschwitz
I once managed a furniture store. I fired an employee for ruining a brand new delivery van, and another vehicle, by crashing into it on an uncrowded street while making a delivery, just because he wasn't paying attention.
The unemployment office called to let me know that was not considered a valid reason for firing, and they penalized us heavily on unemployment payments.View Image bakersfieldremodel.com
Yep. Even a totally legit firing can cost you unemployment points. Some of that you just have to consider the cost of doing business, but having good documentation (and, better still, a written policy) will help to a certain degree.
As I stood before the gates I realized that I never want to be as certain about anything as were the people who built this place. --Rabbi Sheila Peltz, on her visit to Auschwitz
The problem with documentation is that an employer who does so can create expectations on the part of employees that some sort of documentation will be always be provided before someone is fired.
Yeah, there's a catch no matter which way you go.
As I stood before the gates I realized that I never want to be as certain about anything as were the people who built this place. --Rabbi Sheila Peltz, on her visit to Auschwitz
You can't win them all.
If you kept the guy driving, your truck insurance rates would soar.
I always treated it that way myself. Occasionally the fired guys would threaten lawsuits or whatever and I'd offer to help them leaf through the yellow pages to get the numbers to file. Whatever, I didn't care. When I decided they were off the clock, they were off the clock.
Remember folks....this is a construction site! The guys will stay home till their Unemployment runs out and then find another job when they are broke. No lawyer is going to put his precious hours into a suit chasing small time contractors that they know are broke LOL!