March 04, 2021

Off Duty Conduct and “Reverse” Discrimination

This case caught my eye because I thought it illustrated two important points. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race and color. That includes all races and all colors, including Caucasians and Whites. The second is when may an employer take adverse employment action for an employee’s off-duty conduct?  Here’s the scoop.

A white female (Ellis) posted a comment via social media in response to a news story about a man who faced criminal charges for driving his car into a crowd of protesters. The employee wrote, “Total BS. Too bad he didn[‘]t have a bus to plow thr[ough].”  The employer fired her for that post. She sued alleging race discrimination because two black employees had posted derogatory comments on social media and had not been fired.

The court did not buy it.  In comparing the coworkers’ social media posts, the court found, “neither post encouraged mass violence against protesters…Thus, no reasonable jury could find Ellis’s conduct comparable to that of her former colleagues.” In addition, the employer’s policy gave departments and supervisors “broad discretion” over how to discipline employees. Ellis’ two coworkers “worked in different positions, in different departments, had different responsibilities, and reported to different supervisors…That leaves open the possibility that Ellis’s position, department, or responsibilities factored into BNY Mellon’s decision to fire her,” and not her race.

Lessons Learned?  An employer may issue corrective action to an employee based on the employee’s off duty conduct. Doing so, however, should include consideration of the nature of the conduct and how it impacts employee or customer relations, business operations, etc.  Also consider if the employee is non-supervisory, acted in concert with a coworker, and the conduct was related to wages, hours or some condition of employment, the conduct could be protected under the National Labor Relations Act.  As always, talk to your HR representative when it comes to off-duty conduct and/or consider seeking guidance from your company’s employment counsel before taking adverse employment action.