Last week Brookfield Zoo, operated by the Chicago Zoological Society, discharged a worker for posting the comment “rude a** white people” in an Instagram selfie, which she then shared to Facebook. She made matters worse for herself because the photo showed her wearing her Brookfield Zoo uniform and she tagged the location as the Brookfield Zoo. The Zoo has a social media policy which prohibits its employees from discrimination and harassment, including on social media.
So, in a time where the trend is clearly to protect the speech of employees, including social media comments, what makes this employer think that this discharge will stick? Consider the following:
- The former employee was not criticizing either fellow workers or members of management. The NLRB has lately gone out of its way to find even offensive language by employees to be protected if it is about the workplace and/or management related to their duties in the workplace.
- The former employee did not make the comments in the context of protected concerted activity. This factual pattern differs markedly from the Cooper Tire case on which we reported last week where picketers yelled racially charged insults at temporary replacement workers. In the Cooper Tire case, the NLRB found the offensive language to be protected as part of the concerted action of picketing and that the language, while clearly offensive, was not threatening. The Brookfield Zoo employee just made a racially offensive remark.
- The former Zoo employee not only identified herself as an employee of the Zoo by wearing her uniform in the picture accompanying the remark, but tagged the location of her remark as the Brookfield Zoo. Had she made her remark without reference to her employment, she would probably still be employed there. As it was, her selfie in Zoo uniform with the comment clearly associated the remark to her employment and the location tag made it appear that she made the remark while at work.
- A strong Zoo policy prohibiting harassment and discrimination, including on social media, exists. The employer could find both that the ex-employee knew of the prohibited behavior and violated the policy.
While employers may rightfully feel a bit gun-shy about taking adverse action against employees who make inappropriate or downright offensive statements in or about their workplace, offensive or discriminatory comments about customers are rarely protected by law. A clear policy prohibiting such behavior by employees as it relates to their employment, will generally allow the employer to take appropriate action.
