You might believe one of your employees acted in a discriminatory manner toward a colleague by committing what you consider a hate crime, but until you're sure that a crime was committed, be careful about stating the reason you decided to terminate that employee. Well-meaning employment decisions, such as protecting the workplace from discriminatory and criminal behavior, can turn into a defamation claim by the person you fired if she did not commit a crime at all.
The difference between discrimination and hate crimes is that victims of hate crimes typically sustain physical injuries, property damage or some other form of evidence that a crime was committed based on a bias against someone because of her race, religion, sex, disability or other characteristics protected by civil rights laws. The term "hate crime" often is used to describe many types of discriminatory acts that may not be prosecuted as hate crimes under state laws or the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which is the federal hate crime law that President Barack Obama signed in October 2009. Before you fire someone for committing a hate crime, be sure you have irrefutable evidence that the crime actually was committed.
Under the employment-at-will doctrine, an employer can terminate the working relationship at any time, for any reason or for no reason, with or without advance notice. That means you don't need a reason to fire an employee, and it's perfectly legal to not have a reason. Exceptions to the doctrine make it illegal to fire someone who has an employment agreement or a labor union member who is covered by a collective bargaining agreement. But if an employee with a contract commits a hate crime, surely you can find in the agreement an emergency termination clause that will protect you from lawsuits for breach of contract. Also, you cannot fire an employee who exercises her rights under public policy, such as participating in or filing a lawsuit against your company or pursuing a worker's compensation claim.
Although you can fire someone for no reason, it's good business practice to base the employee's termination on fact and not presumption. Therefore, if you learn that an employee has engaged in discriminatory behavior at work or engaged in criminal action that flies in the face of your organization's business principles or violates company policy, then obtain facts about the circumstances through conducting a workplace investigation. Importantly and because of the criminal nature of hate crimes, contact your local law enforcement agency for assistance upon launching a workplace investigation. Also, inform your company's legal counsel and follow their guidance throughout the investigation. Use your fact-finding mission to support the termination and collect documentation that proves your employment decision is justified. Keep your investigative notes confidential and separate from the employee's personnel records and discuss the matter on a need-to-know basis, such as with your company's lawyer.
The U.S. Equal Employment Opportunity Commission enforces federal employment laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The EEOC strongly recommends that employers act swiftly to investigate and resolve employment issues before they morph into costly litigation. While your action to terminate someone who violates the civil rights of another employee may be laudable, check EEOC resources and technical guidance materials for information on your company's liability for employees' and supervisors' actions. If you aren't familiar with the laws that EEOC enforces, contact your local EEOC office and speak to an intake officer, investigator or mediator.
The overarching theme in workplace safety is that employers have an obligation to do whatever is necessary to protect their employees. If this means terminating someone who poses a threat to workers, even based on a presumption that the employee is guilty of committing a hate crime, look at your potential liability if you don't follow through with termination. In addition to possibly putting other employees in danger's path, you could be costing your company money based on low employee morale and employees' lack of trust in leadership.
- The District of Columbia Metropolitan Police Department: Hate Crimes FAQs
- Anti-Defamation League: An Introduction to Hate Crime Laws
- Human Rights Campaign: Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act
- U.S. Equal Employment Opportunity Commission: Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors
- U.S. Occupational Safety and Health Administration: OSHA Fact Sheet
Ruth Mayhew has been writing since the mid-1980s, and she has been an HR subject matter expert since 1995. Her work appears in "The Multi-Generational Workforce in the Health Care Industry," and she has been cited in numerous publications, including journals and textbooks that focus on human resources management practices. She holds a Master of Arts in sociology from the University of Missouri-Kansas City. Ruth resides in the nation's capital, Washington, D.C.