The Harms of Racist Online Hate Speech in the Post-COVID Working World: Expanding Employee Protections

By Tatiana Hyman

In one year, the COVID-19 pandemic and egregious incidents of racial violence have created significant shifts in the United States’s workplace culture and social climate. Many employers are transitioning employees to long-term or permanent remote work, and conversations about racial justice are more pervasive and divisive, especially on social media. With people spending more time at home and on the internet, hate speech has increased and inspired global conversations about curtailing its harmful effects. Unlike many other countries, the United States does not penalize hate speech. Nevertheless, its harmful effects have reached the workplace, and employers have fired employees who posted offensive speech on their personal social media pages. Penalizing racist or offensive social media posts is left to employers’ discretion, resulting in inconsistent court rulings. More specifically, some courts have found conduct outside of the workplace and on social media to be actionable in workplace harassment claims while others have not. This Note proposes that the Equal Employment Opportunity Commission should expand its guidelines to state that courts should consider racist hate speech on an employee’s personal social media page in the totality of the circumstances in Title VII hostile work environment claims.