Race relations have taken center stage in our 2016 presidential election and in our headlines, so naturally topics of race relations have permeated the workplace. This raises important issues for employers, especially when faced with employees who openly protest racial discrimination in society at large because such protests may be controversial and increasingly public due to the proliferation of social media. Most important, employers need to know federal anti-discrimination and anti-retaliation protections may be interpreted by courts to extend to certain types of employee informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support for co-workers who have filed formal charges.
Specifically, 42 U.S.C. § 1981 (“Section 1981”) was enacted to deter racial discrimination in the formation and enforcement of contracts, and also prohibits retaliation, both in and out of employment. In interpreting Section 1981, the courts of Pennsylvania, New Jersey, and Delaware, among others, held that its protections extend to prohibit retaliation that punishes an individual for opposing conduct that violates Section 1981, whether that individual or some third party was the victim of the § 1981 violation. In other words, an employee who protests discrimination may have anti-retaliation protections even when the forms of protest may be controversial and even if the employee was not individually a victim of the discrimination that is the subject of the protest.
In a recent employment case, L Brands/Victoria’s Secret Stores, LLC (“Victoria’s Secret”) terminated a district manager for what it perceived to be racist Facebook posts. As an example, the employee used her Facebook feed to repost a picture depicting a person wearing a Ku Klux Klan-reminiscent white, hooded robe with the Los Angeles Clippers logo and the number 42, and was captioned “Game 5 in LA is Free Sheet Night…Donald Sterling Bobble head doll night too!,” a reference to the headlines about racist actions of Sterling, the Clippers’ owner at the time. When Victoria’s Secret was notified about the posts, it investigated and terminated the employment of the district manager. The district manager brought suit under Section 1981 alleging she was the victim of retaliation for protesting discrimination by Sterling and others on Facebook. Victoria’s Secret won the case (at least at the trial level) by showing that, irrespective of the district manager’s subjective intent, the message of the post was so unclear that no reasonable jury could find that this image objectively complained about or protested incidents of race discrimination prohibited by Section 1981. In this case, the court’s decision rested on its finding that there was no clear connection between the alleged protected conduct and a contractual right and, in any event, the court found no reasonable person could have believed that the underlying incident complained about constituted unlawful discrimination. As the court further explained, an “oblique reference” to or “mere mention of race” or race-based discrimination does not constitute protected opposition to violations of Section 1981, rather it must be an objectively identifiable protest of discriminatory practices in the formation and/or enforcement of contracts.
Employers can take little comfort in Victoria’s Secret’s win, however, because it was essentially based on the Court’s determination that the content of the district manager’s post was not clear enough to trigger anti-retaliation protections. Arguably, the result would have been much different if the employee were clearer about her own feelings and tied them to a contract, even if her form of protest was offensive to Victoria’s Secret and its customers.
The takeaway: Employers must be cautious and should consult with counsel before disciplining employees for conduct that could be construed as protesting discrimination, even when the employee’s conduct appears offensive on its face.
Questions? Let me know.