Q: Can a private employer terminate an employee for social media posts that violate internal policies?
A: The Third Circuit, in a nonprecedential opinion, recently determined that a major airline acted permissibly in firing an employee for sharing offensive social media posts, affirming the district court’s grant of summary judgment grant on all counts.
The employee brought suit against her former employer, an airline, alleging retaliation and gender and disability discrimination. In August 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 July 2017, the employee again requested the original accommodation, which was granted after she appealed to a company vice president. In September 2017, the employee posted several comments on social media having nothing to do with her medical condition or request for accommodation. Her posts included statements that too many “blue-eyed people” were reproducing with “brown-eyed people,” stating that “blue-eyed people” should “unite.” Another post suggested that Black people should be thankful that their ancestors were brought to the United States as slaves, claiming that the standard of living is higher here than in Africa.
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 her 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 in October 2017, she was terminated. In February 2018, she filed complaints with the EEOC and the Pennsylvania Human Rights Commission for failure to accommodate her disability. She then brought suit against her former employer in federal court, alleging that 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 that the employee failed to provide any evidence that 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 that 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 that she was treated differently from a male airline employee who made social media posts disparaging Trump voters. The court rejected this argument since there was no evidence in the record that 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. Knowledge by the employer, the court stated, was the dispositive factor.
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 is important for companies to have comprehensive social media and electronic communication policies and communicate them to all employees, making clear that the employer policies prohibiting discrimination and harassment extend to electronic communications. While employers may not chill employees’ right to engage in concerted activity by discussing terms and conditions of employment, this case makes clear that such rights do not extend to racist or otherwise discriminatory conduct.
In addition, this case provides a good reminder that employers must be careful when making employment decisions close in time to when employees engage in protected activity, such as by requesting a disability accommodation. Documentation is key to clarify the legitimate business reason for the adverse employment action and to refute any claims of retaliation. Additionally, it is important when taking adverse employment action to act consistently to avoid discriminatory bias claims against a protected class.
For assistance with developing company policies and navigating these issues, please contact a member of Troutman Pepper’s Labor + Employment Practice Group.