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What Kinds of Social Media Posts are Protected?

Employees are increasingly using social media to complain about their employment and employers.  As a result, employment-law retaliation claims based on social media activity are on the rise. Employers must treat social media activity with the same concern for retaliation claims as other conduct to keep them safe from legal liability.

with co-author Amber Dodds

Retaliation is the most frequent employment-law allegation in Equal Employment Opportunity Commission (EEOC) charges; fiscal year 2016 statistics reveal 46 percent of the 91,503 charges included a retaliation claim. In August 2016, the EEOC issued revised guidance on retaliation,[1] which broadly interprets the conduct protected against retaliation. This article outlines the EEOC’s interpretation and provides a current litigation example of the EEOC’s application of the retaliation guidance to employee social media use.

What is Retaliation?

Successful retaliation claims under Title VII of the Civil Rights Act of 1964 (Title VII) meet three elements: (1) employee engaged in legally protected activity, (2) the employer engaged in a materially adverse action against employee and (3) causation – the protected activity caused the adverse action. Materially adverse actions deter a reasonable employee from engaging in protected activity; the EEOC focuses on context to determine whether an action is materially adverse.

Protected Activity: Participation

Protected participation activity includes filing an EEOC charge, complaining of employment-law violations, assisting in investigations or participating or testifying in a proceeding regarding the charge or complaint. Under the Guidance, participation in internal employer investigations constitutes protected activity. Protected participation activity need not be in good faith — the employee is not required to have a reasonable belief in the validity of the charge or complaint for his or her participatory activity to be protected. As a result, knowingly false statements alleging discrimination can be protected participation activity.

Protected Activity: Opposition

Protected opposition activity is any communication that conduct violates employment laws, whether or not described as “discrimination” or “harassment.” Opposition, unlike participation, must be reasonable in content (based on a good-faith belief that the conduct was unlawful) and must be reasonable in form (e.g., cannot be raised by threatening violence or engaging in obvious bad-faith tactics) to be protected. The Guidance provides that any opposition activity based on a current EEOC policy or legal position is protected, even if inconsistent with court opinions or regulations.

Retaliation in the Digital Context: EEOC v. IXL Learning, Inc.

The EEOC recently filed suit against IXL Learning, Inc., a developer of online programs for students to practice mathematics and other skills, for terminating an employee based on his social media post. In short, the employee used the company’s unlimited paid sick leave benefit over several months to have major surgery. For the first six weeks, he worked from home two partial days per week to attend pre-operation procedures. Then he was absent from work for two months for surgery and recovery. When he sought to return, he requested an accommodation of half-time telework from home for another four weeks.

Based on the employee’s low productivity while working from home during the pre-operation period — which the employee admitted — his supervisor asked if there were other accommodations that would allow him to work full-time at the office and offered to extend the paid leave for the four-week period. The employee assumed the supervisor was denying his request and responded by alleging (1) IXL was breaking the law, (2) he was entitled to the accommodation and (3) IXL was otherwise discriminating against him. IXL responded by setting a meeting between the employee and its top leadership to discuss his concerns and granting the part-time telework request. Not deterred, the employee anonymously posted a strong critique of IXL on its recruiting website, Glassdoor. He posted: “Know your rights when you work here, because they don’t, and they don’t care to learn. Most management has no idea what the word ‘discrimination’ means, nor do they seem to think it matters.”

IXL’s CEO met with the employee and explored his discrimination concerns. At the end of that meeting, the CEO confirmed the employee made the posting and terminated his employment based on the posting.

A Different Perspective Under the National Labor Relations Act

Employers are often wary of taking adverse employment actions against employees based on social media conduct because the National Labor Relations Board (NLRB) has repeatedly held that some actions have violated the National Labor Relations Act (which applies to both unionized and nonunionized employers). In addition to filing a Title VII retaliation charge with the EEOC, the employee also filed an unfair labor practice charge, which was heard by NLRB Administrative Law Judge Etchingham (ALJ).

The ALJ found the employee’s post not to be concerted activity (on behalf of the employee and others) and, even if it were, not to be protected. Although he applied different legal standards in his analysis, his conclusions shed light on the employment-law retaliation analysis. The ALJ found the employee not credible based on his testimony and numerous inaccurate statements he made in the post and to co-workers. The ALJ noted that the accommodation requested by the employee was granted, characterizing the post as a “tantrum” and a “reckless and impetuous reaction” to the supervisor’s hesitation to grant an accommodation based on previous productivity problems. Significantly, he found the post was intended to harm IXL’s recruiting. The ALJ distinguished Glassdoor, a recruiting website, from other social media sites, because it was not a forum to encourage group discussion, but instead to target prospective employees.

EEOC v. IXL Learning: Next Steps

The EEOC argued in the complaint that the employee’s post was protected oppositional activity, for which he was terminated. It asserted that the conduct was not directed at IXL or its management, but was posted on a public digital forum. It further argued that protected activity need not be directed at the employer – consider nondigital examples like employees who participate in a rally wearing t-shirts stating “Employer pays me less than my male co-workers,” which are picked up by news outlets. Public posts can be forums on which employees engage in protected activity.

The judge in this lawsuit will decide whether the employee’s post was reasonable in content and reasonable in form.

Reasonable in Content. To be protected oppositional activity under Title VII, the employee must have a good-faith belief that the complained-of actions were unlawful. The supervisor’s request to consider other accommodations and delay in granting the requested accommodation were lawful steps in the interactive process. The employee suggested a lawyer told him he was entitled to the accommodation of his choice. It remains to be seen whether the judge will find that a “good-faith” belief, especially where the accommodation was granted. As to general discrimination assertions, the judge will analyze whether the employee believed in good faith that IXL engaged in unlawful activity.

Reasonable in Form. This case will help determine which social media forums are appropriate for protected activity. The judge in the IXL case may take the position, like the NLRB ALJ, that websites like Glassdoor are different in legally relevant ways than other social media sites, or the judge may not. The judge in the IXL case may, like the NLRB ALJ, take the position that employee’s actions were “bad-faith tactics” to harm IXL’s recruiting. This case will be significant for case law on the reasonableness analysis in context of protected oppositional activity.

Looking Forward

Employment-law retaliation claims based on social media activity are here to stay. Social media use is widespread and employees will choose to use it to complain about their employment, including employer activities they believe are unlawful. Employers must treat social media activity with the same concern for retaliation claims as other conduct. Employers should not depend on the reasonableness analysis to keep them safe from legal liability. However, the case will help determine whether courts will agree – or disagree – with the EEOC’s broad views on public, digital oppositional activity.

[1] Equal Employment Opportunity Commission, EEOC Enforcement Guidance on Retaliation and Related Issues, (Aug. 25, 2016), available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm.


James Kizziar

James “Jim” Kizziar is a partner in Bracewell LLP’s Labor & Employment practice in San Antonio. He advises clients and all levels of management, including boards of directors, executives and human resources, regarding compliance with federal and state employment laws and local ordinances.  He can be reached at james.kizziar@bracewell.com.

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