Transgender employee fired for company critique on social media

Dive Brief:

The Equal Employment Opportunity Commission is suing a Silicon Valley-based education technology company for allegedly dismissing an employee in retaliation for comments made on Glassdoor about discrimination at the company, Benefits Pro reports. The dismissed employee also filed a related civil lawsuit in federal court earlier this year, Benefits Pro said. That case is still pending, but a National Labor Relations Board judge previously sided with the employer.
According to court documents, after a transgender worker was denied a scheduling request related to his reassignment surgery, he criticized his employer in a Glassdoor post. The comment alleged managers at the company he worked for "do not know what the word 'discrimination' means, nor do they think it matters." Following the post, the company cleared out the transgender worker's desk and fired him.
The employee alleged in the post that treatment in the workplace was not fair. He wrote that, unless an employee is a "family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball," the employee would likely face discrimination at the company. The employee had also reportedly spoken with his supervisor about alleged discrimination in the workplace.

Dive Insight:

Employers might not like being publicly criticized, especially on social media, but they need to think twice before firing workers who post unflattering comments about them. Adverse or retaliatory employment actions against comments considered free speech generally don't fare well in the courts and the related public perception of a company as intolerant creates additional headaches regardless of legal outcomes.

The definition of "protected speech" has been expanding as social media reaches further into the workplace. Earlier this year, the National Labor Relations Board defended an employee who called his manager a “NASTY MOTHER F****R” in a Facebook comment that also discussed a union election.

The U.S. Court of Appeals for the 2nd Circuit sided with the board, despite making clear its disapproval of the plaintiff's "vulgar and inappropriate" Facebook comments about his employer. In its ruling, the 2nd Circuit said that the National Labor Relations Act protected his rights. Last November, The U.S. Circuit Court of Appeals for the District of Columbia overturned a lower court's decision that upheld DirectTV's firing of contractors who criticized the company in a TV interview.

Aside from the employee speech issues sparked by social media, employers also need to remain vigilant for discrimination issues in the workplace. Claims of discrimination need to be taken seriously regardless of how they are communicated.