Employer Response Tips From Firing Suit Over Birdwatcher


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No employer wants to make decisions based on an employee's social media activity. Everyone tells employees to keep their private life private and don't let it affect the job — right?

What happens when it is not the employee's social media conduct but a viral video of the employee that becomes the center of a social media firestorm? As with so many things in employment law, you can't make this stuff up.

Although it seems a lifetime ago, in the spring of 2020, the internet's attention turned to a viral video of a white woman in New York's Central Park who called 911 about a Black man who she said was threatening her life.

Enter the viral video that did not appear to show threatening behavior but that the man was birdwatching. The woman's employer, the investment firm Franklin Templeton, tweeted that it did not condone racism of any kind and ultimately terminated her employment.

She filed a lawsuit, Amy Cooper v. Franklin Templeton on May 25, 2021, claiming race discrimination, sex discrimination and defamation. The U.S. District Court for the Southern District of New York dismissed her claims on Sept. 21.[1] What can we learn from this infamous case?

What constitutes an internal review?

The plaintiff made a big deal about the fact that Franklin Templeton tweeted out that it had decided to terminate her following an "internal review of the incident in Central Park."

She admitted that the company talked to her about the incident and had likely seen the video. However, she complained that the company had not obtained a recording of her 911 call or interviewed others who may have had a run-in with the birdwatcher.

The plaintiff claimed that Franklin Templeton's failure to take these steps meant that their tweet about an internal review was false and therefore defamatory.

The federal court disagreed, holding that the plaintiff failed to plead that the statement was not substantially true, a requirement under New York law.

The court noted that the company's tweet simply said it had conducted an "internal review," not a "thorough and fair investigation." While the plaintiff may have been miffed about the extent of the company's review, the court held that she could not plausibly allege that no investigation had been conducted.

The court's opinion plays mainly with semantics, but it does raise a valid question: How much investigating is enough in a situation like this?

Once the video went viral, it is understandable that Franklin Templeton wanted to respond quickly and show that it did not condone racist behavior. Hence, the first tweet that stated that it was "investigating the situation." The company put the employee on administrative leave.

Apparently, the company investigated by talking to the woman in the video and reviewing the video. The next day, Franklin Templeton terminated the employee and subsequently tweeted that it had done so.

Investigations that ultimately result in adverse employment actions come in all shapes and sizes. The key is that the company's investigations are done consistently and without bias.

While the plaintiff here attempted to argue that the investigation was a sham, the court did not buy that theory. In fact, the court held that "Plaintiff's dissatisfaction with the adequacy of Defendant's investigation — even if objectively warranted — is insufficient to support an inference of discrimination."

Is implying that someone is racist discriminatory?

The plaintiff alleged that Franklin Templeton's tweets showed that their decision to terminate her was based on her sex and race. The court held that "this argument merits little attention."

The opinion noted that none of the employer's public statements made any mention of the plaintiff's race. The judge also pointed out that the company's condemnation of racism was not connected to the plaintiff's race because "'racism' is not a race, and discrimination on the basis of alleged racism is not the same as discrimination on the basis of race."

With regard to her claim that the implication that she was racist was defamatory, the court held that an "accusation of bigotry is a protected statement of opinion, rather than a defamatory statement of fact capable of being proven true or false."

Does this mean that accusations that a person is racist cannot be used as the basis for a discrimination or defamation action? Not necessarily.

The court here found it significant that there was no evidence that the employer directly mentioned or considered her race — or sex, for that matter. If an accusation of racism is coupled with some racially insensitive language, the decision could be different.

For employers, this may present a great opportunity to talk to your workers about the company's policy on equal opportunity and how off-duty conduct can sometimes result in consequences at work. At the very least, it may help curb some employee behavior that has a negative impact on your brand.

The plaintiff also attempted to show that the employer's decision was based on her sex. Specifically, she claimed the company applied a double standard because three male employees who engaged in bad behavior were treated differently.

The court considered the comparators and pointed out that none of them were similarly situated employees — the only thing they had in common with the plaintiff was that they all worked for Franklin Templeton. The judge held that mutual employment by the same company is not enough to render them similarly situated.

What can we learn from this case?

It may be rare that a company is confronted with this situation — a highly publicized video of an employee allegedly engaging in racist behavior.

If it does happen, a company may be tempted, as Franklin Templeton was, to publicly distance itself from the employee. But, as we can see here, the social media posts ended up dragging the company into a lawsuit. So, what should a cautious employer do?

Check your policies.

Did the employee's conduct violate a policy? Start with your equal employment opportunity policy and your core values, but don't forget to look at your social media policies as well. The conduct may or may not violate a policy, but check.

Identify the issue.

If the conduct did not violate a policy, you may still have a problem — reputational or otherwise. Take a moment to articulate what you are trying to avoid — harm to your brand, disruption in your workplace, etc.

Then, think about what actions will protect your interests. If any part of that looks like you are taking action against an employee based on race or another protected class, think again. If you are a public employer, does it look like you are repressing free speech?

Check for comparators.

Have you ever had another employee engage in similar conduct? If so, what action did you take? Are you being consistent?

Give reminders.

Remind employees that their actions outside of work may affect the company's reputation, and when this happens, the company may have to take action. While this most often arises when an employee is arrested, it is happening more and more in the social media realm.

Vet social media postings.

Reinforce your social media policies and procedures. In this case, it appears that the company was on top of what was being tweeted, but you want to be sure that your social media folks don't get ahead of your legal counsel. Be sure that any social media postings are carefully vetted to make sure you don't land yourself in more trouble.

Republished with permission. This article, "Employer Response Tips From Firing Suit Over Birdwatcher," was published by Law360 on October 11, 2022.