Prior to the advent of social media and especially the #MeToo movement, employers were generally comfortable drawing a bright line between what employees did on their own time and workplace misconduct. Those bygone times, however, have been replaced by a modern era wherein employers are forced to apply employment laws created before the personal computer to their workforce in an increasingly virtual world. In this installment of #No Filter, we will continue to explore sample cases involving an employer’s decision to take disciplinary action following an objectionable social media post.

U.S. Equal Employment Opportunity Commission v. IXL Learning Inc., Case No. 3:17-cv-02979, in the U.S. District Court for the Northern District of California.

In October 2018, the Equal Employment Opportunity Commission asked a federal jury in San Francisco to award damages to Adrian Scott Duane, a transgender man who was fired for posting an anonymous two-star review of his employer on Glassdoor. In the anonymous posting, Duane alleged any employee who isn’t “a family-oriented white or Asian straight or mainstream gay person with 1.7 kids” would receive worse “treatment in the workplace,” including fewer flexible working hours and promotions. At the time of the post, Duane was working from home following his gender reassignment surgery and objected to the strict work schedule given to him during his remote assignment. Upon learning of the post, the employer’s CEO confronted Duane and asked him if he was the author of the Glassdoor post. Duane admitted that he was the author and was fired for attempting to interfere with the employer’s recruiting efforts.

After a trial on the merits, on October 29, 2018, the San Francisco federal jury unanimously found Duane’s employer did not commit unlawful retaliation by firing him for the anonymous post accusing the company of discrimination.

Carter v. Transport Workers Union of America Local 556, Case No. 3:17-CV-2278-S, 353 F.Supp.3d 556 (NDTX Feb. 1, 2019)

Charlene Carter worked as a flight attendant for Southwest Airlines for more than a decade. In January 2017, Carter’s local union participated in the Women’s March on Washington, D.C. which was sponsored in part by Planned Parenthood. In response, Carter made numerous posts on Facebook and sent a number private messages and videos to the union’s president, including video of an aborted fetus and comments calling the president, “despicable”, “a SHEEP in Wolves Clothing [sic]” and “TRASH!” Carter went on to tell the union’s president, “YOU all DISGUST ME!!!!! OH and by the WAY I and so many other of our FAs VOTED FOR TRUMP….so shove that in your Propaganda MACHINE! [sic]” During a subsequent investigation, Carter defended her comments on the basis she is a “Christian” and “was attempting to open a dialogue with President Stone by sending her the messages and pro-life videos.” Following a fact-finding investigation, Carter was terminated because the posts and messages were “disparaging to Southwest Flight Attendants as well as to all employees” in violation of its “Workplace Bullying and Hazing Policy and the Social Media Poli[cies].”

Carter thereafter filed a grievance against Southwest Airlines and proceed to arbitration on the merits of her wrongful termination claim. Following a two-day arbitration hearing, the arbitrator found in favor of Southwest Airlines. After losing at arbitration, Carter filed a claim alleging, inter alia, discrimination under Title VII of the Civil Rights Act of 1964 in federal court in the Northern District of Texas. In response, Southwest Airlines filed an early motion to dismiss arguing the plaintiff’s wrongful termination had previously been decided at arbitration. The Court denied Southwest’s motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure because it “would need to consider matters outside the scope of the pleadings.” In other words, an early motion to dismiss under Rule 12(b)(6) limits the Court’s ability to examine documents outside of plaintiff’s complaint (the arbitration award); however, such a limitation does not apply at the summary judgment stage in advance of trial.

Practical Advice for Employers

These cases illustrate how difficult and nuanced the process for terminating an employee for a social media post can be. Employers considering discipline for misconduct occurring on social media outside of work should ask themselves a few basic questions prior to taking action:

1. Do I have a copy of the tweet or post?

Social media is user-controlled content and can be easily deleted when an employee learns they are under investigation. Preserving this evidence prior to taking action is critical to any complete investigation.

2. Does the post relate to working conditions or wages?

The National Labor Relations Act prohibits employers from taking action against employees acting together to improve their wages, hours and/or conditions of employment.

3. Would the post be considered harassment if said face to face?

Applying an employer’s harassment and discrimination policy to offensive conduct requires evaluating the content of speech and actions. Consistently evaluating offensive conduct, irrespective of the venue where the conduct occurred, will help ensure uniform application of the employer’s policies.