Recently, the Third Circuit Court of Appeals upheld the dismissal of race discrimination claims by a bank employee. The bank terminated the employee for a social media post. Employers have wrestled for the better part of the 2000’s with the explosion of social media. The focus is often on how to prevent harm to their business by the social media activities of their employees. The courts have also struggled with the issue. Judges, sensitive to the needs of businesses to protect their products, services, and reputations, also must balance the first amendment rights of employees.
Social Media – Threat of Violence
Plaintiff was a project manager in the bank’s wealth management department. In June 2018, a public news source posted an article on a popular social media site. The article reported on the arrest of a local politician who allegedly drove a car through a crowd of demonstrators protesting the shooting death of a young, African-American male, by police officers. The plaintiff publicly commented on the article under her own account, “… He should have taken a bus to plow thru”. Her account publicly listed that she was employee of the bank.
The bank was not aware of the post until flooded by other offended users of the social media platform. Many sent complaints directly to the bank, and even its executive officers. The bank terminated her after an investigation that found her post violated the their conduct and social media policies.
Social Media – Public Outcry
The District Court granted summary judgment to the Bank. It rejected the Caucasian plaintiff’s attempts to point to African-American employees who were not terminated for their posts. The Court in its decision detailed that those individuals were not similarly situated because, among other things, their posts did not advocate violence, were not made in the comments section of a public news story, and did not result in a “public outcry.” The Third Circuit agreed with the District Court’s reasoning affirmed the dismissal holding that the plaintiff’s post was far more egregious than those of the alleged comparators and was far more likely to harm to the bank’s reputation.
What to Do
It has never been more important for a company to have a clear workplace social media policy. The courts, federal agencies, and many state and local governments have a maze of rules and regulations regarding the implementation of such policies. Businesses should reach out to their labor and employment counsel or seek consultation from experts in compliance before promulgating a policy to ensure it balances the legitimate interests of the business without trampling the rights of the employees.
