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Sharing racist Facebook post warranted demotion, arbitrator rules

May 4th, 2017  |  David Stephanides

A second shift supervisor took a vacation day to watch the Super Bowl. At some point, while at home watching the game, he received a video that he thought was amusing, and he posted it to his Facebook page. His Facebook friends included several co-employees, including at least one he supervised. As it turns out, however, the video, which was about two minutes long and showed a man giving a banana to a gorilla, was incredibly racist, given that the voiceover equated the gorilla with African-Americans. The employer received 40-50 phone calls complaining about the video. As a result, the employer demoted the supervisor, and he filed a grievance.

The employer’s justification for the demotion was found in the employee’s violation of two workplace policies. One policy required a work atmosphere free of discriminatory harassment and inappropriate behavior. The other required a respectful workplace free from violence, unethical conduct, or offensive conduct. The employee’s defense was that he had no idea that the video was racist because he did not listen to the audio and was unaware of the comparison of the gorilla to African-Americans. Even if he were to be believed, however, posting such a video created an environment that violated the employer policies.

One key question was whether those policies applied to activities that took place away from work. The arbitrator concluded that the video was “brought to the workplace” by posting the video to a Facebook page that included co-employees (and at least one person he supervised). It was the same, the arbitrator said, as if the employee had shown the video to co-workers in the break room at work.

The other key issue was whether the employee’s violation of the workplace policies justified a demotion, without first resorting to progressive discipline. Relying on testimony from a 37-year employee with supervisory responsibilities, the arbitrator concluded that the employee’s supervisory responsibilities had been fatally compromised by the Facebook posting. Admittedly, he was not given progressive discipline, but the employer could not be required to retain him as a supervisor in order to determine if morale and order suffer as a result of his actions. Its determination that his actions justified immediate demotion was reasonable under the circumstances. The grievance, therefore, was denied. Metropolitan Council and Transit Managers and Supervisors Association. 17-1 ARB ¶6883. Sherwood Malamud.

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