Employer Not Necessarily Liable for Insulting Facebook Posts

The U.S. Court of Appeals for the Third Circuit rejected a flight attendant’s hostile work environment claim based on offensive posts to a Facebook group that was neither created nor monitored by the employer.

In Chinery v. American Airlines, the flight attendant was outspokenly opposed to a collective bargaining agreement. She claimed that she was harassed on a Facebook group for flight attendants through derogatory photos and offensive comments about her gender and appearance, among other things. She complained to Human Resources, which concluded her claims were without merit. She then sued, alleging the creation of a hostile work environment in violation of Title VII and state law.

A hostile work environment exists when discriminatory conduct is so severe or pervasive as to alter the conditions of the plaintiff’s employment and create an abusive working environment. The Third Circuit found, however, that the complained-of conduct was neither pervasive nor severe. Specifically, the Third Circuit rejected the flight attendant’s argument that the posts were inherently pervasive because “social media posts are public and endure.” According to the Third Circuit, permanence alone does not render the posts so extreme as to change her terms and conditions of employment. Although it acknowledged some of the posts were offensive, the Third Circuit also found that they were “offhand comments and isolated incidents” that did not rise to an extreme level.

Of particular note, the Third Circuit dismissed the argument that the employer, by failing to adequately investigate her complaint or enforce its social media policy, rendered the conduct severe. The Third Circuit acknowledged that these alleged failures could have some bearing on whether the employer had respondeat superior liability for the offensive conduct of the flight attendant’s fellow employees – apparently an argument that the flight attendant did not make. Thus, this case warns employers that they may have an obligation to investigate, and redress, if possible, conduct that occurs outside of the workplace, to the extent that there is an impact that could carry over into the workplace.