Prior to the advent of social media, employers were generally comfortable drawing a bright line between what employees did on their own time and workplace misconduct. However, those bygone times have been replaced by a modern era wherein employers are forced to apply employment laws created before the personal computer to their workforce located in an increasingly virtual world. The COVD-19 pandemic has only accelerated the transition to a more virtual workplace. In this high-flying installment of #No Filter, we explore sample cases involving two Customer Service Agents and the decisions of their private employers to take disciplinary action following objectionable social media posts made on their personal devices while off-duty.
Rhonda Patterson-Eachus v. United Airlines, Inc., No. 19-CV-01375-MEH, 2020 WL 7260742 (D. Colo. Dec. 9, 2020)
Plaintiff worked for United Airlines for thirty-one years in several capacities, most recently as an airport operations supervisor. While off-duty, on personal time, and with her own computer, she posted a link to her private Facebook page seeking support for preserving the “Rebels” mascot of her high school, Weld Central High, including a cartoon superimposed on a Confederate flag. She also re-posted a video opining that the Confederate flag “is not the evil that many people say it is.” Plaintiff’s Facebook friends included other United employees, including employees she supervised. United received at least one anonymous complaint and one of Plaintiff’s colleagues informed her the posts offended one of the African American customer service agents who Plaintiff supervised. Plaintiff removed the posts and informed Human Resources they had been removed. Following an internal investigation identifying examples of conduct from other personnel who “felt picked on or harassed” by Plaintiff, her employment was terminated and she filed suit for gender and age discrimination under Title VII of the Civil Rights Act as well as violation of Colorado’s lawful off-duty activities statute.
On the gender and age discrimination claims, the court found Plaintiff met her initial prima facie burden for these claims based on her “blemish-free record for over thirty years.” She was “terminated without Defendant utilizing progressive discipline,” and her immediate supervisor was barred from participating in the investigation. However, the court also found United established a legitimate, nondiscriminatory reason for her termination based on conduct that violated its employee conduct standards. Specifically, United justified its departure from progressive discipline by showing (1) her conduct “irreparably damaged her ability to lead her subordinates,” (2) its conduct guidelines expressly allow progressing directly to termination for “harassment of United employees for any reason,” and (3) there was no comparator evidence of prior inconsistent treatment (i.e., no evidence of similarly situated employees engaging in like conduct which was not terminated for violating these policies). Accordingly, the court granted summary judgment in favor of United on Plaintiff’s gender and age discrimination claims.
Colorado’s lawful off-duty activities statute provides “[i]t shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours ….” In denying United’s motion for summary judgment on this state-law claim, the court noted the Colorado law “was meant to provide a shield to employees who engage in activities that are personally distasteful to their employer, but which activities are legal and unrelated to an employee’s job duties.” Id. at *9; see also Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458, 1462 (D. Colo. 1997).
Koslosky v. Am. Airlines, Inc., 456 F. Supp. 3d 681 (E.D. Pa. 2020)
Plaintiff worked as a Customer Service Agent for American Airlines for thirty years. In September of 2017, she made two Facebook posts “containing inflammatory and racially insensitive sentiments” that went viral and created a “firestorm” involving complaints from co-workers and customers. After an internal investigation found the posts were “perceived to be racist in nature,” she was terminated for violating the employer’s social media, passenger service conduct, and work environment policies. Plaintiff filed suit for gender and disability discrimination as well as retaliation under Title VII of the Civil Rights Act and the Americans with Disabilities Act.
In support of her claims, Plaintiff pointed to a Customer Service Supervisor who made inflammatory Facebook comments about then-President Trump and was not disciplined. The court found this comparator was not “similarly situated in all respects” because those posts “were political in nature,” and an objective reader would view Plaintiff’s posts as “racist because they discussed people’s personal characteristics and membership in protected classes. Although both had the potential to cause upset, they were not the same.” Accordingly, the court granted American’s motion for summary judgment in its entirety and dismissed the case.
Practical Advice for Employers
These cases illustrate how important consistent application of disciplinary policies (and the comparators they create) can be in defending against employment litigation. The United case also illustrates the importance of considering state law in discipline cases involving social media, especially for employers with a national geographic footprint. California, Colorado, Louisiana, New York, and North Dakota have state-specific laws prohibiting employers from taking adverse employment actions based on lawful off-duty activities such as speech. These off-duty conduct laws, however, are still relatively rare among the fifty states.
Employers considering discipline for misconduct occurring on social media outside of work should ask themselves a few fundamental questions before 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 and context of the speech. Consistently
evaluating offensive conduct and taking action to correct it, irrespective of
the venue where the conduct occurred, will help ensure uniform application of
the employer’s policies and help the defendant against subsequent litigation.
 Colo. Rev. Stat. § 24-34-402.5.
 Employees are similarly situated in all respects when they held the same job or responsibilities, shared the same supervisor or had the same decision-maker involved in a decision about their employment, have comparable violation histories, and engaged in “nearly identical” conduct. Id. at 689; Doe v. Apria Healthcare Group, Inc., 97 F. Supp.3d 638, 645 (E.D. Pa. 2015).
 It should be noted this case is currently being appealed.