Excerpted from a Troutman Pepper Blog by Sean Craig
Can a private employer terminate an employee for social media posts that violate internal policies? The Third Circuit, in a nonprecedential opinion, recently determined that a major airline acted permissibly in firing an employee for sharing offensive social media posts.
The airline employee brought suit against her former employer, alleging retaliation and gender and disability discrimination. In 2016, she requested a disability accommodation so she would not need to engage in “excessive walking.” Her employer denied her requested accommodation but provided a different accommodation. In 2017, the employee again requested the original accommodation, which was granted after she appealed.
That same year, the employee posted several comments on social media having nothing to do with her medical condition or request for accommodation. Her posts included statements too many “blue-eyed people” were reproducing with “brown-eyed people,” stating “blue-eyed people” should “unite.” Another post suggested Black people should be thankful their ancestors were brought to the U.S.
The employee’s posts went viral, and other airline employees made internal complaints, stating that they did not want to work with her because of the racist posts. Additionally, members of the public posted collages of the employee’s posts to the airline’s public social media pages.
In response to the outcry, the airline suspended her, and later in 2017 she was terminated. She filed complaints with the EEOC for failure to accommodate her disability. She then brought suit against her former employer in federal court, alleging the social media posts were a pretext to fire her due to her gender and/or disability.
The district court granted summary judgment on all counts in favor of the employer, and the Third Circuit affirmed. The Third Circuit determined the employee failed to provide any evidence the social media posts were a pretext to fire her. There was a two-month gap between her second request for accommodation and when she was fired, which the court concluded was too long a period to infer retaliation. The court also noted no other evidence supported a connection between the plaintiff’s accommodation requests and her termination or to refute the airline’s basis for her termination — the social media posts.
The plaintiff further argued she was treated differently from a male employee who made social media posts disparaging Trump voters. The court rejected this argument since there was no evidence the airline knew of the other employee’s social media posts, whereas the airline was made aware of the plaintiff’s posts by many sources.
As the employee presented no evidence of a pretextual firing, the Third Circuit concluded her termination was proper. She was terminated for violating company policies and generating an outcry from both customers and other employees, which legitimately justified termination.
It’s important for companies to have comprehensive social media and electronic communication policies and communicate them to employees, making clear the policies prohibiting discrimination and harassment extend to electronic communications. While employers may not stop employees’ right to engage in concerted activity by discussing terms and conditions of employment, this case makes clear such rights do not extend to racist or otherwise discriminatory conduct.
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