Misee Harris, a Pediatric Dentist in Tennessee, was allegedly forced to resign because of a meme she posted on her personal Facebook page. The meme depicted a young black male with a target on his chest, and the caption “Open Season on Black Folks.” According to Ms. Harris, the meme was an attempt to draw attention to the racial issues involved in the Michael Brown shooting and the protests in Ferguson, Missouri. Her employer, however, viewed it as an attack on her treatment as a black person in her workplace. Both views implicate employee’s right as it pertains to social media and race discrimination.
Social media policies in the workplace remain a hot topic for administrative judges and the National Labor Relations Board. Such policies are voluntary and often invalidated by the Board because they are perceived to prohibit discussions among coworkers pertaining to behaviors or decisions in the workplace, an activity protected under the National Labor Relations Act. Postings criticizing management, coworkers, or decisions are considered protected activity so long as fellow coworkers were involved in the communications. Recently, however, an administrative law judge held that a policy urging civility in postings on social media sites was lawful. Therefore in the case of Ms. Harris, the question remains whether her postings concerned behaviors or decisions in the workplace that she was sharing with colleagues, or her personal opinion on social issues to be discussed among friends.
Even if, however, an employer does not infringe on an employee’s social media rights, it still has to be careful not to infringe on other rights by virtue of its use of social media in employment decisions. Race discrimination, for example, goes beyond a blatant adverse action by virtue of an employee’s race. It is also implicated when an employer has employment practices that are inconsistently applied with a disparate impact on a protected class. For example if Ms. Harris is the only black employee and the only employee to have her Facebook posts reviewed, race discrimination becomes an issue. Or if other employees do have their social media posts monitored and have also raised social issues but with no repercussions, their decision to address it with Ms. Harris implicates race discrimination.
Social media sites are platforms for individuals and organizations to express opinions to thousands of readers. And with news and government being instant and transparent, employers are understandably concerned about being associated with an employee’s opinion, particular one that is controversial or unpopular. To censor, however, may create more problems than it solves.