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Third Circuit Rules Offensive Facebook Posts Did Not Create Hostile Work Environment

Social media is a huge part of our lives these days, and many businesses use various social media platforms to their benefit.  However, a recent case out of the Third Circuit Court of Appeals demonstrates just how social media can become a medium for employees to harass one another and implicate liability for an employer.  Chinery v. American Airlines, No. 18-3118 (3d Cir. 7/25/19).

Chinery worked as a flight attendant for American Airlines.  During her employment, she ran for president of the airline’s local union chapter on the platform that she opposed their collective bargaining agreement. This caused some other flight attendants to take to Facebook to communicate their apparent disagreement with Chancery.

In a Facebook group (which the airline neither created nor monitored), several flight attendants posted various offensive comments that Chinery alleged were related and/or directed at her and the election.  Some of the offensive content was as follows:

  • A picture of a broken record posted by a male flight attendant allegedly in response to Chinery’s complaints about him to HR;
  • A post during the election campaign stating, “[T]his is war. [The incumbent union leaders] are my friends.  If you f**k with my friends you f**k with me and I don’t like being f**ked with” which Chinery took to be a personal threat;
  • Posts containing gender-based slurs and names, including one calling those opposed to the collective bargaining agreement “cavalier harpies” and “shrews of misinformation” and “[h]ave any of them LOOKED in the mirror? Tuck in your shirt fat ass . . . Fix your hair . . . How bout a tie?  A little lipstick?”;
  • A post of the Wicked Witch of the West with the comment, “I don’t have time for basic bitches”; and
  • A post allegedly referring to Chinery as “Flipper.”

Although Chinery complained about the posts, the airline concluded there was no merit to her complaints.

Chinery sued, alleging disparate treatment, retaliation, and hostile work environment claims.  As to the hostile work environment claim, the district court found that the Facebook posts were not sufficiently severe or pervasive that they would unreasonably interfere with an employee’s work performance.  The court denied relief to Chinery on all of her claims.

Chinery appealed, and the Third Circuit affirmed the district court’s decision.  First, the court rejected Chinery’s argument that Facebook comments are “inherently pervasive” because they “are public and endure” finding that Chinery simply had not put forth any authority that permanence alone is enough to create a hostile work environment.  Second, although the court agreed that the Facebook posts were insulting and derogatory, among other things, it found that the comments were sporadic “offhand comments and isolated incidents” that did not arise to a hostile work environment.  Finally, the court disagreed that the airline’s alleged failure to investigate Chinery’s complaints and discipline the other flight attendants made the conduct severe and pervasive enough for a hostile work environment claim.

While American Airlines escaped liability in this case, employers would be well served to recognize the ways in which social media use can open them up to liability, and Chinery’s case demonstrates, and develop and enforce effective social media policies to protect themselves and their employees alike.

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