“Is it fair to fire someone for re-sending to others unsolicited, offensive emails?”

Question: I am a 67 year old manager. In April, I received unsolicited emails that were both anti-Muslim and pornographic, and I made the mistake of resending them on to others. As a result of the distribution of this email around our company, a memo was then sent out by Senior Management indicating that negative employment actions would be taken if this ever happened again.

In July, I was confronted with what I had done in resending the offensive emails. I immediately apologized, and sent to everyone on my email distribution list an email that stated that, effective immediately, all non-business use of company email must stop.

Now, in August, I was dismissed for my resending of those offensive emails back in April. Does this “punishment” fit the “crime?”

         New York, New York

Answer:  David, I receive many, many questions just like yours, both in my legal practice and from Blog visitors. It is far too easy to make the kind of mistake that you did.

From my perspective, whether “the punishment fits the crime” is a hard question to answer, because I would need to know many facts and factors that your email did not provide me. As just a few examples:

 It would make a difference to me if this was the very first time you did such a thing, or if this happened ten times previously.
 It would seem relevant to me to know whether the company had a strict policy against such behavior, and had distributed that policy to you and others.
 It would make a big difference to me to know whether the company was “selective” in who was punished and who was not. Might older employees have been singled out? Might members of Senior Management who also resent the emails have been treated more kindly?
 As a result of the termination, did the company avoid paying you any retirement benefits?
 Were you ever assured that your apology and corrective efforts would result in your being forgiven and given a second chance?
 Does your company have a “progressive discipline” policy that requires you be given a fair time and procedure to appeal your termination?
 Have you suggested that a personal apology to any Muslims in the company might be a better step to take for all?
 How badly does this termination affect you and your family financially? 

I hate to see people fired, especially those over 65 years of age.

At the same time, I hate to see people treated with contempt because of their religious beliefs. When I was 3 years old, my family moved to the suburbs. My very first memory of suburban living was my brother and I being beaten up by three boys – aged 5 and 7 – shouting religious hatred. I remember that event, and those boys’ names, to this very day, 56 years later. I think it changed my life. 

With the utmost of sincerity, I suggest you consider the various facts and factors that weigh on your own sense of what is fair in light of your “crime,” and prepare a heartfelt letter to your employer, either senior most management or the Board of Directors. In that letter, ask that you be given an opportunity to show remorse, then viewed as redeemed, and given a second chance to show your redemption and value, as a result of what President Obama would call a “teachable moment.” Under the circumstances, that seems to me to be the best, and most effective, step to take for all concerned.

I hope this helps; I really do.   

Best, Al Sklover

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