Q: Can a private employer fire an employee for social media posts that violate internal policies?
A: The Third Circuit, in a landmark opinion, recently determined that a major airline acted in an authorized manner in firing an employee for sharing offensive social media posts, upholding the district court’s grant of summary judgment on all counts.
The employee sued her former employer, an airline, alleging retaliation and discrimination based on gender and disability. In August 2016, she applied for a disability accommodation so she wouldn’t have to engage in “excessive walking”. Her employer refused the accommodation she had requested, but provided her with alternative accommodation. In July 2017, the employee again requested the initial accommodation, which was granted after appealing to a vice-president of the company. In September 2017, the employee posted several comments on social media that had nothing to do with her medical condition or her request for accommodation. His posts included statements that too many “blue-eyed people” were breeding with “brown-eyed people”, stating that “blue-eyed people” should “unite”. Another article suggested that black people should be grateful that their ancestors were brought to the United States as slaves, saying the standard of living is higher here than in Africa.
The employee’s posts went viral and other airline employees filed internal complaints, saying 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 on the airline’s public social media pages. In response to the outcry, the airline suspended her, and in October 2017 she was fired. In February 2018, she filed complaints with the EEOC and the Pennsylvania Human Rights Commission for failure to accommodate her disability. She then sued her former employer in federal court, alleging the social media posts were a pretext to fire her because of her gender and/or disability.
The District Court entered summary judgment on all counts in favor of the employer, and the Third Circuit upheld. The Third Circuit determined that the employee provided no 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 the time she was fired, which the court found 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 dismissal or to refute the airline’s basis for her dismissal — the social media posts.
The plaintiff further argued that she was treated differently than a male airline employee who posted social media posts disparaging Trump voters. The court rejected this argument because there was no evidence in the record that the airline was aware of the other employee’s social media posts, whereas the airline had been made aware of the plaintiff’s posts by many sources. Knowledge by the employer, the court said, was the deciding factor.
Because the employee presented no evidence of a sham dismissal, the Third Circuit concluded that her dismissal was proper. She was fired for violating company policies and causing an outcry from customers and other employees, which legitimately justified the dismissal.
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It is important that companies have comprehensive social media and electronic communications policies and communicate them to all employees, making it clear that employer policies prohibiting discrimination and harassment extend to electronic communications. Although employers cannot restrict the right of employees to engage in concerted activity by discussing terms and conditions of employment, this case makes it clear that these rights do not extend to racist or otherwise discriminatory conduct.
Additionally, this case serves as a reminder that employers should be careful when making employment decisions close to when employees engage in protected activity, such as requesting disability accommodation. Documentation is essential to clarify the legitimate business reason for the adverse employment action and to refute any allegations of retaliation. Additionally, it is important when taking adverse employment action to act consistently to avoid allegations of discriminatory bias against a protected class.