Last week, the Third Circuit denied a Pennsylvania-plaintiff’s application to have her retaliation claim against her former employer reinstated. The plaintiff, Mindy Caplan, a former district manager for the retail chain Victoria’s Secret, claimed she was terminated “for opposing racial discrimination in society” after posting two racially-charged pictures on Facebook. Throughout 2014, the plaintiff identified herself as a Victoria’s Secret district manager on Facebook, which was accessible to other Victoria’s Secret employees and the public.
In 2014, Victoria’s Secret received an anonymous complaint about two “disturbing” posts on the Facebook profile. The first post was a reposted picture depicting a person wearing a “Ku Klux Klan-reminiscent white, hooded robe emblazoned with the Los Angeles Clippers logo,” and was captioned “Game 5 in LA is Free Sheet Night . . . Donald Sterling Bobble head doll night too!” The second post included a reposted picture of an African American woman named “Airwrecka McBride” with the caption, “I’ve been spelling Erica wrong my whole life.” Victoria’s Secret concluded that both posts violated the company’s equal opportunity, off duty conduct, and social media policies, and determined the employee would be fired if she was responsible for either post.
The plaintiff argued the Sterling post, was meant to be a protest against race discrimination mocking a racist business owner. She did not argue the second post qualified as protected activity. Rather, she “merely found it funny.”
The court noted that the plaintiff’s claim failed if either post was not protected speech. The court agreed that there was an issue of fact with the Sterling post, and that it could have been interpreted as mocking a racist business owner. The court found that the Airwrecka post, however, did not fall under the “protective umbrella of the First Amendment.” The Third Circuit agreed with the District Court’s finding that the Airwrecka post served “no purpose other than to satirize the atypical spelling of an African[]American woman’s name.” Thus, Victoria’s Secret was entitled to terminate her employment.
Employers must be mindful when disciplining employees for their social media postings. Additionally, employers should consider applicable state law governing employees’ off duty conduct. As we have seen in prior cases, there is a fine line between protected and unprotected activity. Employers should review and update social media policies as well as continue to train managers and human resource professionals.
The case is Caplan v. L Brands/Victoria’s Secret Stores, No. 16-4009 (3d Cir. Aug. 9, 2017).
