A frontline service worker at a Cinnabon was recently terminated after a video circulated showing her hurling a racist epithet at a Somali couple. The footage spread quickly with millions of views on TikTok. The employer acted swiftly. And, in a development emblematic of the current digital moment, the terminated employee has since raised more than $327,000 in online donations as part of “A Public Awareness Initiative.”
Public consensus around the underlying conduct was immediate. But employment law does not operate on consensus—it operates on process. Viral incidents like this one expose a growing tension between public outrage and the procedural expectations imposed on employers, particularly when discipline unfolds in real time and under intense scrutiny.
The question for employers is not whether racist conduct is unacceptable—it plainly is, and employers have a duty to ensure their workplace is free of discrimination and harassment. The question is whether, and how, employers can discipline such conduct while remaining tethered to their own policies, past practices, and legal obligations in an era when the internet demands instantaneous moral resolution.
What Investigation Was Conducted?
In moments like these, the investigative process itself often disappears. Then video appears and termination follows. What happens in between, including whether anything happens at all, matters significantly.
At a minimum, employers should be asking:
- Was the employee interviewed and given an opportunity to respond?
- Were witnesses, including coworkers or customers, identified and interviewed?
- Was the video reviewed in full and in context?
- Was the discipline consistent with how similar misconduct has been handled previously?
In the age of AI and deepfakes, internal investigations in response to salacious video or audio recordings that appear damning of guilt are more important than ever. A video or audio recording of an employee can be fabricated by AI, including replication of the employee’s voice, swapping faces or manipulating video to make someone appear to do something they never did, all while appearing highly realistic. Without an investigation and interviewing the accused, an employer may not become aware of the fabrication and could fire an innocent employee.
Prompt action is not synonymous with summary action. Even in a clear-cut case, employers are expected to conduct a reasonable investigation aligned with their policies. A termination that is defensible on the merits can still become legally vulnerable if the employer bypasses its own procedures in the rush to respond to public pressure.
The Perils of the Emotional Foray
Viral incidents invite employers into what might be called an “emotional foray”—a decision-making space driven by reputational anxiety rather than institutional discipline. In that space, public sentiment can begin to substitute for established internal protocols.
Courts, however, are not particularly interested in what trended on social media. They are interested in whether the employer followed its own rules. When discipline appears reactive, inconsistent, or untethered from established standards, employers risk claims of disparate treatment, arbitrary enforcement, or pretext, even where the underlying conduct is indefensible.
This is not a hypothetical risk. History is littered with examples of employers acting decisively in viral moments only to spend years defending the process rather than the conduct itself.
Digital Culture and the Afterlife of Termination
Another feature of modern employment disputes is that termination no longer ends the narrative. Online fundraising campaigns, media reframing, and algorithmic amplification can transform a fired employee into a champion overnight.
For employers, this means:
- Disciplinary decisions may be re-litigated in the public sphere.
- Post-termination narratives may attract litigation funding.
- Employment actions may be recast as ideological or politically motivated.
None of this alters the legal analysis. Instead, it heightens the importance of a clean, well-documented process that can withstand scrutiny long after the news cycle moves on.
Competing Legal Obligations
Employers facing racist or harassing conduct are navigating multiple, sometimes competing, duties:
- The obligation to maintain a workplace free from harassment and discrimination
- The obligation to treat employees consistently and in accordance with policy
- In some jurisdictions, statutory protections for lawful off-duty conduct
- The need to articulate a clear nexus between the conduct and the workplace
Acting too slowly can expose employers to harassment or hostile environment claims. Acting too quickly can invite wrongful termination or discrimination claims. The law does not require perfection, but it does require reasoned judgment.
Lessons for Employers
The takeaway is not restraint in the face of misconduct, but discipline grounded in process rather than pressure. Employers should:
- Develop response protocols for viral incidents before they occur including identifying a trusted public relations team able to assist in a crisis, along with legal counsel
- Train investigators on efficient fact-gathering
- Ensure termination decisions are tied explicitly to policy language
- Maintain consistency with past disciplinary actions
- Separate public relations messaging from internal investigative conclusions
- Consider hiring outside counsel to conduct the investigation, particularly if a leader or company Board member is the accused.
In the age of viral discipline, the most defensible employment decisions are often the least theatrical. The internet may demand immediacy, but it is not an HR department, and it does not sit in judgment when these cases reach a courtroom.