November 7 Tip of the Week


Anyone who has ever worked in Human Resources knows that the truth is often stranger than fiction.  Over the years, myHRcounsel has helped employers to address situations that caused us to scratch our heads at their absurdity.  These situations  usually involve the need to discipline or terminate an employee for conduct that is unimaginable and clearly warrants corrective action.  The frustration that every employer and every human resources professional faces is the vagaries of the state agencies and courts when dealing with due process and employment law cases.  Many times, it appears that the laws and the courts are slanted toward the employee perspective and employers are reluctant or gun shy when it comes to taking action against a wayward employee because of the fear of a lawsuit or a claim that may ultimately be decided in the employee’s favor.  This can happen even when the employee has engaged in egregious misconduct or even fraud.

In an effort to encourage employers to take a stand when it comes to bad employees, this week’s tip shares a positive outcome for employers in a high-profile case. 

In May 2020, a female employee (Amy Cooper) of Franklin Templeton, a financial services company, was walking her dog in Central Park in New York City, when an African-American male (Christian Cooper) who was birdwatching approached her and asked her to leash her dog in accordance with the rules of the park.  Ms. Cooper took offense at the birdwatcher’s request and, at some point in their exchange, called 911 to report that she was being threatened by an African-American male and she feared for her safety.  The incident was captured on video, which was later posted on Twitter and Facebook, and Ms. Cooper was accused of engaging in racist behavior in her interaction with Mr. Cooper.  In an article describing this incident and the impact that it had on the lives of the individuals involved, the New York Times described Ms. Cooper as “contentious” and “combative” (  Ms. Cooper apologized to Mr. Cooper and denied being racist; despite this apology, Ms. Cooper was fired from her job at Franklin Templeton. 

Franklin Templeton acted quickly in response to the incident, placing her on administrative leave immediately after learning about the encounter and including a statement that the company does not condone racism of any kind. The company posted this information on Twitter.  The company then conducted an internal review of the situation and the next day issued a public statement stating that Ms. Cooper had been terminated effective immediately following their internal investigation.  In announcing the decision to terminate Ms. Cooper, Franklin Templeton reiterated its earlier statement that it does not condone racism of any kind.  While these public statements regarding personnel matters on not common, in this instance, because of the very public nature of the employee’s conduct, Franklin Templeton had to respond to the situation in the same public space where the controversy occurred. 

Ms. Cooper sued her employer for wrongful termination, alleging that she was discriminated against on the basis of her race and gender, and claiming that she was treated differently than other similarly situated male employees in the company.  Ms. Cooper also claimed that Franklin Templeton defamed her and acted negligently in terminating her employment because they did not conduct an investigation into the incident.  Franklin Templeton moved for summary judgment against Ms. Cooper alleging that her lawsuit failed to state a claim upon which relief could be granted.  The United States District Court for the Southern District of New York granted Franklin Templeton’s motion for summary judgment, finding that Ms. Cooper failed to raise even an inference of discriminatory motive in the decision to terminate her employment.  The court further rejected Ms. Cooper’s defamation claim, noting that the truth is an absolute defense to defamation. See, Cooper v. Franklin Templeton et al, New York Southern District Court, Case No. 1:21-cv-04692-RA. 

Franklin Templeton made the decision to terminate Ms. Cooper in furtherance of its “zero tolerance policy” on racism.  The fact that Ms. Cooper’s actions caused a public furor, in part because it occurred on the same day as the events surrounding George Floyd’s death likely contributed to the outcome.  It is reasonable for an employer, like Franklin Templeton, that relies on its reputation to attract and retain business, to terminate an employee who engages in public conduct that is controversial and conflicts with the company’s stated values.  This is true even where the conduct occurs off duty.   

While the decision to terminate this employee in this instance was upheld by the courts, each case is different.  The circumstances surrounding employee discipline and employee termination vary greatly and an employer’s ability to address employee misconduct and malfeasance is governed by the facts of each case and the law in the state in which they conduct business.  Employer policies and treatment of similarly situated employees also play an important role in the decision on how to address poor employee behavior.  MyHRcounsel can assist you in addressing employee misconduct – before it happens with well-written, legally compliant, and comprehensive policies – and after it happens by assisting you in determining the appropriate response to such behavior.