Context matters when deciding if social media posts are ‘protected activity’

Some employee speech on social media may end up classified as protected activity if it can legitimately be classified as a protest against what would be illegal discrimination under laws like Title VII. For example, a post could be viewed as an objection to an employer’s alleged race discrimination or some other form of unlawful bias. It might then be viewed as protected activity under Title VII. And if an employer discharges an employee for engaging in protected activity, she might have a retaliation claim.

Recent case: Mindy worked as a district manager for Victoria’s Secret, the lingerie chain.

Mindy’s Facebook profile mentioned her job title, and her profile picture showed her standing outside a Victoria’s Secret store. Many of her Facebook friends also worked for the company.

Her Facebook account was set to be publicly accessible, not just available to her Facebook friends.

Victoria’s Secret maintains a hotline for reporting workplace concerns. An anonymous caller reported through the hotline that Mindy had allegedly made several disturbing posts on Facebook. The caller also claimed Mindy had made racist comments on the job and had refused to hire black applicants. Those were the first complaints about Mindy that the company ever received.

Two Victoria’s Secret HR professionals launched an investigation and quickly located the posts that the complaint identified.

The first was a reposted picture depicting a person wearing a Ku Klux Klan-reminiscent white, hooded robe emblazoned with the Los Angeles Clippers logo. It was captioned “Game 5 in LA is Free Sheet Night . . . Donald Sterling Bobble head doll night too!” (Donald Sterling, the former owner of the Los Angeles Clippers basketball team, was banned from the sport for making a series of racist comments.)

The second image was a reposted picture of a black newscaster named Airwrecka McBride, with a caption stating, “I’ve been spelling Erica wrong my whole life.”

The HR reps concluded that the two posts violated the company’s equal opportunity policy, as well as it’s off-duty conduct and social media policies. They determined that if Mindy admitted to making either post or to making racist comments, she would be terminated. In an interview, Mindy denied making racist comments but admitted that she had indeed reposted the two posts on her Facebook page from other Facebook accounts. In other words, she denied having created them, but said she had shared them on her page. She was immediately terminated.

Mindy sued, arguing that by reposting the two images, she had actually been opposing racism. She said that the first post was a public statement against racial discrimination by society in general and mocked a racist business owner. She said the second post was an innocuous joke.

The 3rd Circuit Court of Appeals said that the first post might, if viewed in a way that gave a benefit of a doubt to Mindy, be seen as a protest against racism. However, it concluded that the second post could not possibly be viewed as anything but offensive and upheld her discharge. (Caplan v. Victoria’s Secret Stores, 3rd Cir., 2017)