A Texas employer investigated one of its employees; who was rumored to be selling porn in the workplace. The rumors turned out to be true when five pornographic DVDs were found in the employee’s locker. The employee was fired, and everyone moved on with their life. There is nothing illegal about firing an employee for selling porn at work, right?
Apparently there can be. In a recently published opinion, a federal appellate court found the employer to be liable for retaliation despite having a legitimate reason to fire the employee. The case holds some important lessons for employers about when they can begin to investigate an employee.
The case involved an African-American man and his white supervisor who got into a verbal tiff one day on the factory floor. During the tiff, the supervisor said, “Boy, I don’t know why every time I come over here it’s a hassle!” The employee complained to HR, claiming that the supervisor used “boy” as a racial epithet. HR eventually determined that the supervisor did not intend to use “boy” in that way. Everyone moved on, and the incident appeared to be over.
Then about a month later, another employee complained to HR about the African-American employee’s complaint to HR. During the course of that employee’s discussion with HR, he revealed that the African-American employee had been selling pornography at work. HR told the employee to purchase a pornographic DVD from the African-American employee, which he did. He gave it to HR, who then determined that it was pornography, and confronted the African-American employee about it. A search of his locker revealed five other pornographic DVDs. When HR asked to search his car, he left work before the search could take place. The African-American employee was then fired.
The African-American employee sued his employer, claiming that he was retaliated against for complaining about his supervisor calling him a racial epithet. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee based on, among other things, that employee’s race. It is illegal to retaliate against an employee because he or she made a complaint or initiated a legal action claiming to be the victim of illegal discrimination by taking negative action against that employee.
The federal appellate court agreed with the African-American employee’s claim. It found that the employer ultimately began to investigate the African-American employee as a result of hostility towards the employee for complaining about being discriminated against based on his race. The court found that but for the complaint to HR about the African-American employee’s complaint, there never would have been an investigation into his activities, and therefore it never would have come to light that he was selling pornography at work.
The lesson for employers is that they should be careful when and how they investigate their employees. If an employee complains that he or she is the victim of discrimination, employers have every right to investigate the merits of this claim. If during the course of this investigation they happen to find that the employee is doing something that violates employer policies, they can fire the employee. However, if the sole reason for the investigation is due to someone being angry at someone else because they claimed they were discriminated against, this will almost surely be illegal. There is undoubtedly a fine line between legal and illegal investigations, and employers may want to contact an attorney before they begin.
Also, the court found that the possession of pornography was quite widespread in the workplace, and there was nothing in the employer’s policies that made it explicitly against the rules to possess it. So, employers should take note of this and make it clear to their employees that possessing pornography is against workplace rules. Employers may want to have an attorney review their employee handbooks to make sure that such policies, among others, are clearly explained.
