Monday, March 8, 2021

Third Circuit: Firing for Facebook post provides defense to discrimination claim


 A short but interesting non-precedential opinion from the Third Circuit in Ellis v. BNY Mellon Corp. A white employee alleged that BNY Mellon discriminated against her by firing her for an offensive Facebook post, while not terminating black employees who also posted offensive things on social media. 

The Court concluded that not all offensive Facebook posts are created equal:

Not official use.
In response to a news story about a man who faced criminal charges for driving his car into a crowd of protesters, Ellis commented: “Total BS. Too bad he didn[’]t have a bus to plow thr[ough].” Neither supposedly-similar employee said anything as extreme. One expressed frustration with a white co-worker but did not threaten that co-worker with violence, let alone serious bodily harm or death. The other opined that men who hurt women should commit suicide. Though inappropriate and ill-advised, neither post encouraged mass violence against protesters, as Ellis’s did. Thus, no reasonable jury could find Ellis’s conduct comparable to that of her former colleagues.
I'm not sure I agree that "no reasonable jury" could find the posts comparably offensive, and that the plaintiff's post was more offensive as a matter of law. That said, the supposed comparators "worked in different positions, in different departments, had different responsibilities, and reported to different supervisors than Ellis did." So, it's unlikely Ellis would have made out a prima facie case even if the posts were deemed sufficiently comparable. 

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