​'Ape in heels': dealing with racist remarks at work

Analysis

​'Ape in heels': dealing with racist remarks at work

A controversial Facebook post referring to Michelle Obama as "an ape in heels" has ignited debate about publicly expressed racism. This article examines employers' obligations regarding racist remarks in the workplace.

Following the US election, controversy erupted on social media when a Facebook post described the current president’s wife Michelle Obama as “an ape in heels”. The company director responsible for the post was dismissed, while a mayor who responded with “just made my day” resigned.

Some commentators have expressed fears that the US election result and other recent political developments may encourage an increase in publicly expressed racism. That remains to be seen, but this article examines the obligations on employers to deal with racist remarks made by employees.

The importance of context


In her defence, the company director claimed that her comment only referred to her personal opinion of Obama’s physical attractiveness, not her skin colour or racial origin. Be that as it may, the remark could reasonably be regarded as being offensive to Obama and many other people.

A key issue for employers will be whether racist remarks were made in the context of employment or connected in some way to the person’s employment. This may not be the case when remarks are made by someone in a personal context outside employment.

If a “reasonable person” reading or hearing the remarks would not interpret them as possibly being the views of the employer, or they could not be linked to the employer (eg because it was impossible to identify the person’s employer from his/her remarks), then no disciplinary action by the employer would be justified. The person is free to make the remarks, but the person/people they are aimed at may have grounds for taking action directly against the person, eg for race discrimination – but not against the employer.

A related issue is whether the remarks have the potential to cause damage to the employer’s business viability or reputation. Again, this will depend on whether people are likely to interpret the remarks as being made on behalf of, or connected with, the employer.

In the case of the remarks about Obama, they were made by high-profile people whose employer could be readily identified.

An unfortunate consequence of the explosion in social media use is that some people who might otherwise moderate their publicly-expressed views can easily find anonymous “friends” online who share their views and support them. They then feel empowered to freely express views that would land them in trouble if expressed face-to-face, but the relative anonymity of social media makes them feel “safe”.

What if racist remarks are made in context of employment?


If an organisation has an employment policy prohibiting discrimination at work, racist remarks by an employee (either to or about another employee, customer or visitor to the workplace) will usually amount to a breach of that policy. The policy should set out the consequences for any breach of it.

A good policy will include specific examples of what is discriminatory or unacceptable conduct and should refer to comments made by employees. 

Even if there is no policy, an employee’s conduct may amount to a breach of anti-discrimination legislation and an employer may be vicariously liable for the conduct.

However, even where an employee’s conduct appears to have been blatant, an employer is still required to investigate the matter first and provide an employee with procedural fairness before making a decision.

An employer must have solid grounds for believing that the alleged misconduct occurred. Even if an employee readily admits to it, there may be differing views about exactly what occurred and the context in which any remarks were made.

As a minimum, it is recommended to interview an employee and put the allegations of misconduct to him/her, seek a response and consider any possible mitigating circumstances (such as provocation by someone else or the “offended” person having some other agenda).

Other steps may include interviewing possible witnesses, interviewing the alleged victim, and collecting any documentary evidence, eg emails containing racist remarks. Only after following this procedure should an employer make a decision about imposing any disciplinary action on the employee, or dismissing him/her in serious cases.

Note that it is not necessary for employees that have been the target of racist remarks to make formal complaints to an employer. If it is clear the remarks were made and that they can reasonably be regarded as racially discriminatory or offensive, that will usually provide sufficient grounds for an employer to take action.

Also, other employees who were not the target of the remarks may be offended by them. Finally, racist remarks do not have to have been made directly to, or in the presence of, the “target” employees. The degree of offence caused, or likely to be caused, by the racist remarks is also relevant. Some will be serious enough to justify dismissal if proven, while others will be milder although still potentially offensive. Again, the context needs to be considered.

A good time to remind employees of their obligations?


As noted above, the current global political climate may encourage some employees to be more confident about expressing racist views publicly. It may therefore be a good idea for employers to refer to organisation policies and anti-discrimination legislation to remind employees of their compliance obligations. Refresher training for employees in compliance with policies may also be worth considering.
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