The Sixth Circuit Court of Appeals has held that discrimination against transgender/LBGTQ employees is discrimination on the basis of sex that violates Title VII of the Civil Rights Act of 1964.  Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc.  Moreover, the court held that the employer could not use the Religious Freedom Restoration Act (RFRA) as a defense to justify such discrimination.

The Plaintiff began work as a funeral director and presented as a male (birth sex).  Eventually, Plaintiff informed the funeral home that she had a gender identity disorder and would transition to female.  Plaintiff was fired when she informed the funeral home she was no longer going to present as a male and would transition and dress as a female.  The funeral home contended that continued employment would harm its business clients and violated the funeral home’s owner’s Christian beliefs.

The federal Equal Employment Opportunity Commission (EEOC) filed suit under Title VII alleging unlawful discrimination on the basis of sex.  The funeral home owner defended the termination under the RFRA.  The RFRA prohibits enforcement of a religiously neutral law that substantially burdens religious exercise, unless the law is the least restrictive way to further a compelling government interest.

The district court held that Plaintiff was discriminated against based upon sex stereotypes, but held the EEOC could not enforce a Title VII claim because it would burden the employer’s exercise of religion in violation of the RFRA.  The court granted summary judgment to the funeral home.

The Sixth Circuit reversed and held that Title VII prohibits discrimination on the basis of LGBTQ status.  Perhaps more importantly, the court held that the funeral home was not entitled to a RFRA defense on the ground that continuing Stephens’ employment would not, as a matter of law, burden the employer’s exercise of religion and, even if it did, the EEOC had established that enforcing Title VII is the least restrictive means of furthering the EEOC’s compelling interest in combating and eradicating sex discrimination.

In days past employees discussed and debated workplace issues around the water cooler. That sentimental past-time has long since been replaced by online social media networking and the reach of social media is stunning.

There are more than 2 billion monthly active Facebook users as of June 2017.  65% of these users on average log into Facebook daily and are considered active users. Five new profiles are created every second. The highest traffic occurs mid-week between 1-3pm. There are 328 million monthly active Twitter users, 100 million daily active tweeters and 500 million Tweets sent every day.

Disgruntled employees now use social media to speak out about employers and co-workers, using Facebook, Twitter, blogs and the like. An on-line attack has the potential to cause harm to the good-will of companies, and negatively impact the morale and reputation of employees.

The National Labor Relations Board (NLRB) regulates the employer-employee relations of private union and non-union workplaces.  In recent years the Board has consistently acted to protect from discipline unhappy employees who resort to social media and has waged an active war with employers to expand the rights of employees to use their employers’ private email systems.

As a result, many employers are asking fundamental questions. Do employees have a right to use social media sites while at work? Can I monitor employees’ social media activity? Do I need a social media policy?

The statistics vary but somewhere between 25% to 50% of companies have a social media policy in place. About 30% have policies that delineate how employees must present themselves when posting on the internet; nonetheless, 75% of the employees of these companies use social media regardless of the company’s policy.

The National Labor Relations Act gives employees the right to act together to address wages, hours and terms and conditions of employment. This is referred to as “protected, concerted activity.” When an employee posts a complaint on Facebook or Twitter about a company policy, such as vacation or flexible work hours, or complains about a work unit’s supervision, the employee may be engaging in protected activity that the NLRB considers to be beyond the reach of disciplinary action.

What are some of the factors that employers need to consider?

  1. Was the post for purely personal reasons?
  2. Did other employees join in or “like” the post?
  3. Did the post concern work-related issues?
  4. Was the post so disloyal or egregious so as to lose protected status?

While an employee may post a comment or observation a company considers disrespectful or objectionable that may qualify as protected, concerted activity, there are recognized limitations.  One such area includes proprietary and confidential information, and trade secrets.  Another area that is off limits includes comments about co-workers that are based on race, age, religion and other unlawful activity, such as sexual harassment.

However, in the absence of evidence of these off-limits areas, comments that companies have considered disrespectful, damaging to the company’s reputation, inappropriate in violation of company policies, or even as flat out false have been found lawful and protected.  And, to add insult to injury, the NLRB also has held the underlying company handbook personnel policies to be illegal.  As a result, employee discipline has been overturned, the employee reinstated with back pay and other lost benefits, and the company ordered to revise the underlying policy.

Now, some relief may be on the horizon for 2018 and beyond.  On December 1, 2017, the new NLRB General Counsel issued a memorandum to field offices directing them to submit cases involving several of these contentious social media, handbook policy and use of company email issues to the Division of Advice for further guidance.  This action acts to essentially freeze regional offices from moving new cases forward.

In the meantime, how does an employer navigate the murky social media waters?

  1. Notify employees that internet use will be monitored and that there is no expectation of privacy in the use of the company’s email and internet system.
  2. Implement a social media policy and train employees on its content.
  3. Designate a person to be responsible for implementing and administering these steps, and monitoring compliance.
  4. Implement a procedure to report policy violations.
  5. Prohibit the use of social media networking during working time.
  6. Review underlying policies (confidentiality, non-disparagement, harassment, etc.) to assure the policies do not infringe on concerted, protected activity.