Tag Archives: Second Circuit Court of Appeals

Offensive Facebook Posts May Be Protected Speech

Human resources experts often recommend a detailed analysis before disciplining an employee for offensive statements. On April 21, 2017, the Second Circuit Court of Appeals highlighted this requirement and forced an employer to reinstate an employee who had been fired for posting highly offensive comments about his supervisor. Although this case, National Labor Relations Board v. Pier Sixty LLC, 2017 U.S. App. LEXIS 6974 (2d Cir. April 21, 2017), involved a union organizing campaign, such a dispute can arise outside the union context. It can arise in a breakroom conversation, a media interview, a picket sign, or a social media post. If the content involves protected speech, such as criticism of the terms and conditions of the employee’s employment, and especially if the speech purports to speak on behalf of or for the benefit of others, the speech may be protected, whether or not there is a union involved.

In Pier Sixty, the employee posted on Facebook that his supervisor is a “NASTY MOTHER F—ER” and “F—his mother and his entire f—ing family!!!”  The post criticized his supervisor’s communications style, saying, “…don’t know how to talk to people!!!!”  The post also included a pro-union statement, “Vote YES for the UNION!!!!!!”

The court weighed the protections (here, concerted activity) versus how abusive or “opprobrious” the comments were. The court reviewed the context of the statements, including that the employer was found to have permitted past vulgarity and to have engaged in other efforts to impede unionizing efforts. Commenting that these posts fall on the “outer bounds” of protected activity, the court declared the posts to be within the bounds of protected concerted activity and required the employer to bring the discharged employee back to work.

Employers should ensure that workplace rules are consistently enforced and that the reason for discharge does not involve and does not appear to involve a protected reason. Employers should be prepared to articulate and, if required, prove the lawful reason for discharge rather than relying on at-will status.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628

Setting the Stage for Supreme Court Review of Whether Title VII Prohibits Sexual Orientation Discrimination

Three circuit courts of appeal have issued opinions on whether Title VII prohibits sexual orientation discrimination. The Second Circuit (New York, Connecticut, and Vermont) and Eleventh Circuit (Alabama, Georgia, and Florida), relying on past precedent, have held that Title VII does not prevent discrimination based on sexual orientation. However, on April 4, 2017, the Seventh Circuit (Indiana, Illinois, and Wisconsin) issued a conflicting opinion, becoming the first circuit to hold that sexual orientation discrimination is indeed prohibited. Now, with the circuits split on this issue, the stage is set for the U.S. Supreme Court to be asked to resolve this conflict. However, recent reports opine that the employer in the Seventh Circuit case will not appeal the decision to the Supreme Court. If the employer does not appeal, another case will have to make its way through the lower courts before the divergence of opinion can take center stage at the Supreme Court.

Until the battle is fought before the Supreme Court, Florida employers should keep in mind that while Florida falls under the jurisdiction of the Eleventh Circuit Court of Appeals, and thus, arguably sexual orientation discrimination is not currently prohibited by Title VII, many municipalities, including the City of Sarasota and City of Miami, have local ordinances that prohibit such discrimination. Further, the Equal Employment Opportunity Commission, the agency charged with enforcing Title VII, takes the position that discrimination on the basis of sexual orientation constitutes sex discrimination and is therefore prohibited.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558