Monday, August 12, 2019

Third Circuit: Handful of Facebook posts did not create a hostile work environment

In Oncale v. Sundowner Offshore Svcs., Inc., Justice Scalia wrote that Title VII is not "a general civility code for the American workplace." To establish a claim for a hostile work environment, a plaintiff must establish "severe or pervasive" harassment. The Third Circuit just issued an interesting opinion addressing that issue in the context of Facebook posts.

The case is Chinery v. American Airlines, and it is a not precedential opinion. The harassment seems to have stemmed from a union leadership dispute that got a little ugly on Facebook. Here's how the Court described the Facebook posts (I try to avoid bloc quotes, but you really have to read the actual posts to get the full picture):

  • One flight attendant, who made negative comments towards those opposed to the Union contract, posted a picture of a broken record on Wingnuts (a Facebook group). Chinery believed that the picture was an immediate reaction to something she posted on Facebook and was in response to the complaints she made to American’s human resources department about him.  
  • During the campaign, a second flight attendant posted, “[T]his is war. [The incumbent union leaders] are my friends. If you f**k with my friends you f** with me and I don’t like being f**ked with :(.” (asterisks in original). Chinery interpreted this post as a personal threat since it referenced her campaign. 
Not official use.
  • A third flight attendant made multiple harassing posts: (1) in response to a post about the campaign, he wrote “it’s your cunstitutional [sic] right to vote NO [to the Union challengers]”;  (2) he mocked her use of flashcards to study the Union contract and then wrote “[t]old ya I can’t cunt [sic] to potato,” which Chinery contends was an offensive reference to her gender;  (3) he wrote posts calling those opposed to the collective bargaining agreement “cavalier harpies” and “shrews of misinformation,” adding “[h]ave any of them LOOKED in a mirror? Tuck your shirt in fat ass . . . Fix your hair . . . How bout [sic] a tie? A little lipstick?”;  (4) he posted a picture of a “bedazzled” vagina, which Chinery believed was directed at her friend for defending Chinery on Facebook; (5) according to Chinery, he posted a picture of the Wicked Witch of the West with the caption “I don’t have time for basic bitches,” which she argues was about her. 
  • About nine months after the election ended, Chinery was ordered to attend a disciplinary meeting based on allegations that she had taken a video of one of American’s vendors without permission. The meeting was rescheduled, and after a fourth flight attendant learned about the delay, he wrote on his personal Facebook page, “HOLY SHIT! I knew it!! Flipper has NOT had her meeting yet!” Chinery claims that “Flipper” is a derogatory term and that the comment was about her.
Not enough! The Court rejected the plaintiff's argument that the harassment was pervasive because social media is public and permanent. The Court recognized that some of the posts were "offensive" but "offhand comments and isolated incidents" are insufficient to create liability. Finally, the plaintiff alleged that the employer failed to enforce its own social media policy. That may be relevant when assessing respondeat superior liability - but it does not show severe or pervasive harassment.

Ultimately, the Third Circuit affirmed summary judgment for the employer. This may just be my subjective perception - but it seems like courts are becoming more hesitant to toss cases based on a lack of "severe or pervasive" harassment. Although this case is not precedential, it shows that plaintiffs still must clear that hurdle.

HT: Eric Meyer - When do (or don’t) Facebook posts create a hostile work environment?

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