Employee fired over profanity, racial slur on Zoom call – or is he? Court weighs in

A New Jersey company was ordered to reinstate an employee who was fired for using the F-bomb and the N-word during a Zoom call.

At first glance, the court’s decision might seem a bit surprising – but it holds a valuable lesson for employers.

Zoom call gaffe

On July 29, 2020, a white employee used profanity and a racial slur during a Zoom meeting. Several co-workers heard the employee and notified him that he was not on mute. The employee immediately disconnected from the meeting.

A short time later, he texted his manager, explaining that he had been singing along to a rap song and mistakenly thought he was on mute. He apologized for the incident.

Despite the apology, the company’s HR department placed him on administrative leave while it investigated. Ultimately, the company fired the employee for violating the company’s code of conduct.

The union filed a grievance on the employee’s behalf to challenge the termination, and after the grievance process outlined in a collective bargaining agreement (CBA), the parties went to arbitration.

Arbitrator: Termination was too harsh

On July 12, 2021, the arbitrator found there was “no dispute that [the employee]  engaged in the misconduct alleged,” and that “the use of such language, in particular the ‘N-word’ in the workplace, is inappropriate and unacceptable behavior.” The arbitrator determined the employee violated the company’s code of conduct and several policies in the employee handbook.

Even so, the arbitrator questioned whether the termination was justifiable under the CBA, which did not define “just cause.” Thus, it was left open to interpretation.

In the arbitrator’s view, “just cause principles include[d] the concept of progressive discipline.”  

“As a general principle, absent egregious misconduct, mitigating factors are properly considered,” the arbitrator explained. Because no egregious misconduct occurred here, the arbitrator considered mitigating factors, such as:

• The employee’s immediate apology
• His 28-year positive work record, and
• Testimony from the employee’s African American brother-in-law confirming the song’s context.

Ultimately, the arbitrator concluded the termination was “an excessive penalty, contrary to just cause principles,” and ordered the company to reinstate the employee with an unpaid five-day suspension.

The company challenged the arbitrator’s finding in federal court, claiming it violated laws against racial harassment and also exceeded the arbitrator’s authority.

The district court rejected the company’s petition and confirmed the arbitrator’s finding, reasoning that the arbitrator acted within her authority under the CBA to interpret the phrase “just cause” and that her award neither violated public policy against racial harassment nor prevented the company from complying with state and federal law.

Why Third Circuit affirmed

The company appealed to the Third Circuit, arguing that the arbitrator and the district court were wrong to require it to rehire an employee who used the N-word because that amounted to “preventing [the company] from complying with state and federal law against racial harassment.”

The Third Circuit was not convinced. It explained that the employee’s “one-time utterance of the term,” which was not directed at anyone specific and occurred when the employee mistakenly believed he was on mute, “was precisely ‘the sort of offhanded comment and isolated incident’ that falls short of harassment.”

As such, it affirmed the district court’s ruling that declined to vacate the arbitrator’s award.

Lesson for HR: Provide manager training on tech tools

You’ve probably heard that old adage that an ounce of prevention is worth a pound of cure. That’s good advice because it’s usually much easier to avert a problem than it is to deal with the fallout after something bad happens.

In this case, the whole mess might’ve been avoided if the host of the meeting had muted everyone.

To be fair, this meeting occurred in 2020 when people were still learning how to use Zoom at the height of the pandemic shutdown, so the error can be chalked up to the learning curve.

Fast-forward four years: By now, companies should be providing training to help managers navigate the use of tech tools. It’s a mistake to assume that everyone knows all the bells and whistles of various tech platforms.

Even though most people mute themselves when they join a call, sometimes people forget. So the host should take control and mute everyone to prevent background noise that may cause disruptions.

HR’s Compliance Toolkit: Stay Ahead of Changing Federal and State Regulations

Regardless of which platform your company uses, it’s a good idea for HR to provide helpful guidance, like how to mute everyone, that allows managers to take — and maintain — control of virtual meetings:

• How to mute attendees on Zoom.
• How to mute attendees on Teams.

Sharing these tips can help avoid legal headaches like the one in this lawsuit.

Comcast of NJ LLC v. IBEW Loc. Union No. 827, No. 22-3239, 2024 U.S. App. LEXIS 2092 (3d Cir. 1/30/24).