As universities across the United States grapple with the steep rise in Antisemitism and Islamophobia on their campuses following the horrific events of October 7th, employers are similarly facing tough questions about appropriate workplace conduct.
Recently, several of the nation’s top law firms drafted a joint letter to university law schools noting a zero-tolerance policy towards any form of “discrimination or harassment” and stated that law firms look to universities to ensure students who seek to join their firms after graduation are “prepared to be an active part of workplace communities.”[1] The letter contends that much of the discrimination and harassment happening on law school campuses would be totally inappropriate in a law firm environment and should be actively curbed from school campuses. This letter follows in the wake of several prominent law firms rescinding job offers to students for authoring statements either openly supporting Hamas or maintaining that Israel bears full responsibility for the October 7th attacks.
In response to the letter’s publication, questions have surfaced regarding the limits of free speech on college campuses.[2] Critics of the letter also argue that a letter like this pits these law firms’ vast economic influence against free speech. Of course, while speech on law school campuses certainly implicates First Amendment issues, there is no First Amendment Free Speech in the private workplace sphere. Instead, it is Federal and State law that governs what is permissible conduct.
This begs the question: what is a private employer’s actual legal obligation in the workspace? And how do employers ensure that they avoid potential legal pitfalls in this politically charged climate where diverging political and religious viewpoints can quickly devolve into harassment or unequal treatment?[3]
FEDERAL AND STATE OVERVIEW OF ANTI-DISCRIMINATION LAWS
The answer is not so simple. While employees are in the office, employers have certain legal obligations under federal anti-discrimination laws to provide a work environment that is free from intimidation, insult, or ridicule based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, disability, or genetic information. In particular, Title VII of the Civil Rights Act of 1964, as amended, is the primary federal document that protects employees from employment discrimination in a range of employment decisions, including recruitment, selections, terminations, and other decisions concerning employment.[4] Title VII applies to all private employers and state and local government employees that employ 15 or more individuals, labor organizations, and most federal government employees, making it widely applicable.[5] Given the particularly steep rise in antisemitism in the United States, The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, issued a unanimous resolution calling for an end to violence, hatred, and harassment against Jewish individuals in the workplace.[6]
In addition to Title VII, Section 1981 and 1983 of the Civil Rights act of 1866 prohibit discrimination based on race, color, and ethnicity and apply to private and government employees respectively. Additionally, in the United States today, most states have additional anti-discrimination statutes that further prohibit discrimination in employment based on religion, national origin, and ethnicity.
For example, as relevant here, New York’s Executive Law § 296 provides additional protections to employees and prohibits discrimination based on religion, creed, and national origin, among other characteristics. As a state, New York also mandates that employers cannot willfully commit or refrain from committing acts that enable such discrimination, and, indeed, notes that the opportunity to obtain employment without discrimination based on protected classes is considered a civil right.[7]
Likewise, in California, the California Government Code § 12940 (also known as the Fair Employment and Housing Act or “FEHA”) protects employees based on race, religion, and national origin. The law further directs that employers must take reasonable steps to prevent and promptly correct unlawful discrimination and harassment. Employers can’t aid, abet, incite, compel, or coerce unlawful discriminatory acts or try to do so, absent a few slim exceptions.[8]
PRIVATE EMPLOYERS’ LIABILITY
What private employers nationwide need to be aware of is that they may be liable for discrimination or harassment even if the harassment was not carried out by a supervisor. While an employer is automatically liable for harassment by a supervisor, an employer will also be liable for any harassment by non-supervisory employees or even non-employees over whom it has control (such as independent contractors), if it knew, or should have known about the harassment and failed to take prompt corrective action to ameliorate the situation.[9]
Thus, it is imperative that employers work to ensure that their workplaces remain discrimination and harassment free, even among peer coworkers. In this geopolitical landscape, that means speaking up unequivocally in support of Jewish and Muslim colleagues and providing diversity trainings and initiatives that focus on combating antisemitism and Islamophobia. It means setting clear expectations as to what constitutes harassment or discrimination. It means condemning such offensive language and conduct and encouraging others in the workplace to speak out against such conduct as well. It also means providing clear guidelines to all employees about the availability of religious accommodations, how to respond to improper statements about religion or ethnicity in the workplace, and it means ensuring that there is an easy-to-follow process for reporting harassment and/or discrimination (and that such reporting is thoroughly and promptly investigated). Furthermore, having a mechanism for reporting that allows employees to bypass a supervisor if said supervisor is the one who is allegedly committing the harassment or discriminatory action is crucial.[10]
FACTORS DELINEATING DISCRIMINATORY CONDUCT AND HARASSMENT
Delineating what discriminatory or harassing conduct actually looks like in this context is a much more difficult question. In determining whether remarks are probative of discriminatory intent, a court considers the following: (1) who made the remark (i.e., was it a decision-maker, a supervisor, or a co-worker?); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).[11] Meanwhile, harassment becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.[12] Factors to look for include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”[13] Additionally, “A plaintiff must show that the work environment was both subjectively and objectively hostile.”[14] When it can be shown that such harassment is so severe or pervasive that it interferes with an employee’s ability to do their job, an employee will have a cognizable hostile work environment claim.[15] Crucially, the employee must have complained about the incident or must show that they had no available mechanism to do so, in order to give actual or constructive notice to the employer.[16]
Finally, while a single incident of discrimination or harassment may be enough to make out a claim for a hostile work environment if it is sufficiently severe (and employers should work to ensure that every instance of discrimination or harassment is curbed), an employer is more likely to be held liable for acts that are so continuous such that they actually alter the conditions of a plaintiff’s working environment. When it comes to racist or religiously-motivated comments, slurs, and jokes, courts have generally held that it must be more than a few isolated incidents to constitute workplace harassment.[17]
If an employer is faced with a harassment or discrimination claim in this realm, they have the obligation to show what steps were taken that were reasonably calculated to end the harassment. The employer must also show that it exercised reasonable care to prevent and promptly correct any harassing behavior or that plaintiff failed to take advantage of opportunities to report instances of harassment.[18]
SOCIAL MEDIA POSTS
While the First Amendment protects people from government action, as violent and incendiary comments and social media posts on the conflict in the Middle East make their way around the internet, private employers are generally entitled to terminate employees over what is posted on social media. This is so even if the posting is done outside of work and even if it has nothing to do with the employee’s work.[19] Of course, it is still unlawful for an employer to fire someone for a discriminatory reason, i.e. because of the person’s ethnicity, religion, or race. Courts have drawn two distinctions. First, if the posts can be shown to be threatening or harassing and make other employees feel unsafe, an employer may terminate an employee for creating a hostile work environment, unprofessional conduct, making false or misleading statements, posting obscene images, or posting about doing something illegal.[20] Furthermore, termination of an employee for racist or Anti-semitic comments in social media posts does not constitute discrimination based on race.[21]
Employers should, of course, also be mindful of individual state rules, which may impose different and additional burdens on employers on top of the applicable federal laws mentioned in this article. Employers in California, for example, should keep in mind that while it is lawful for employers to terminate employees for what they post on social media, there are a number of protections that California affords its workers that are not afforded federally. Specifically, California Labor Law protects employees who are terminated for lawful conduct that occurs after hours, and specifically lawful off-duty political pursuits.[22] In New York, employers will soon no longer be able to coerce or request access to private social media accounts of their workers or job applicants but publicly accessible posts are still fair game for employers to scrutinize.[23]
Interestingly, caselaw suggests that not only are employers permitted to terminate workers who make inappropriate social media posts, in certain cases, employers may actually face liability for failing to investigate and/or terminate employees for posting such improper comments or videos if it indicates a failure to take actions “reasonably calculated to end the harassment.”[24] Thus, employers must create an opportunity for employees to voice grievances of religious discrimination and cannot ignore complaints related to social media posts because they occurred outside of work.
Given the legal and geopolitical landscape here, in order to ensure a safe and productive workplace free from harassment and discrimination, it is thus crucial to have a comprehensive and cohesive policy on social media posting and cyberbullying. Employees must be aware of both what the standard is, and also what the ramifications are for any violations of said standard.
While times of fraught geopolitical discourse and conflict mean that employers must be more vigilant in ensuring that their workplaces remain free from Antisemitism and Islamophobia, there is a clear way forward that centers professionalism, respect, and diverse viewpoints while protecting the interests of the employer.
For any questions or information on employment issues and combating hate in the workplace, please contact a Kahana Feld, LLP employment attorney.
[1] chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://fingfx.thomsonreuters.com/gfx/legaldocs/xmvjlxxodvr/Letter%20to%20Law%20School%20Deans.pdf
[2] Karen Sloan, Major US law firms call on law schools to condemn ‘antisemitism, Islamophobia”, Reuters, November 2, 2023, www.reuters.com/legal/government/major-us-law-firms-call-law-schools-condemn-antisemitism-islamophobia-2023-11-02/
[3] Our analysis focuses on a national approach based on generally applicable Federal standards.
[4] https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964
[5] https://www.eeoc.gov/fact-sheet/federal-laws-prohibiting-job-discrimination-questions-and-answers
[6] https://www.eeoc.gov/sites/default/files/2023-05/WTD%20Antisemitism%20at%20Work%20May%202023-9_508%20final.pdf
[7] See also Exec. L. § 291
[8] CA. Gov. Code, § 12940, subd. (g)
[9] Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998) (“There have, for example, been myriad cases in which District Courts and Courts of Appeals have held employers liable on account of actual knowledge by the employer, or high-echelon officials of an employer organization, of sufficiently harassing action by subordinates, which the employer or its informed officers have done nothing to stop.”). see also Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) (“[T]he more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination.”).
[10] Caselaw indicates that a reporting policy is not effective if the policy is not widely disseminated or does not include a mechanism by which an employee can bypass the harassing supervisor when making a complaint. See Faragher, 524 U.S. at 808; see also Sutherland v. Wal-Mart Stores, Inc., 632 F.3d 990, 994 (7th Cir. 2011) (employer may be liable for hostile work environment if it did “not promptly and adequately respond to employee harassment.”); May v. Chrysler Group, LLC, 716 F.3d 963 (7th Cir. 2012) (Court affirmed jury’s finding that plaintiff had been victim of anti-Semitic attacks that created a hostile work environment)
[11] Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 586 F. App’x 739, 742 (2d Cir. 2014) (quoting Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010)
[12] Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014).
[13] Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 605 (2d Cir. 2006) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993))
[14] McGinest v. GTE Service Corp., 360 F.3d 1103, 1113 (9th Cir. 2004).
[15] May, 716 F.3d at 963.
[16] E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008) (Court denied summary judgment to employer on Muslim employee’s hostile work environment claim where coworkers subjected employee to stream of demeaning comments and actions based on his religion, and where he complained to supervisors and human resources, but nothing was done.); Pivler v. CSX Transportation Inc., No. 118CV1020BKSCFH, 2021 WL 3603334, at *1 (N.D.N.Y. Aug. 13, 2021) (Court dismissed plaintiff’s hostile work environment claim where he could not prove instances of harassment were because of his Jewish identity and harassment was not sufficiently severe or pervasive to alter the conditions of his employment)
[17] Hill v. Frontier Tel. of Rochester, Inc., No. 15 Civ. 6212, 2018 U.S. Dist. LEXIS 39940, 2018 WL 1256220, at *5 (W.D.N.Y. Mar. 12, 2018) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)) (alterations in original); Sandler v. Montefiore Health Sys., No. 16-CV-2258 2018 US Dist LEXIS 166438, at *28 (S.D.N.Y. Sep. 27, 2018).
[18] Faragher, 524 U.S. at 807-08.
[19] See, e.g., Passmore v. 21st Century Oncology, LLC, No. 3:16-cv-1094-J34, 2019 US Dist LEXIS 90236, at *31-32 (M.D. Fla. May 30, 2019)(The Court, having determined that plaintiffs’ social media posts outside of work violated the company’s policies against harassment, work place violence, and use of social media, granted defendants summary judgment after plaintiffs sued for wrongful termination).
[20] Fisher v. Mermaid Manor Home for Adults, LLC, 192 F. Supp. 3d 323, 329 (E.D.N.Y. 2016) (co-worker’s Instagram post compared Plaintiff to a fictional chimpanzee from the Planet of the Apes movie along with other in-office conduct raised a question of fact on hostile work environment); Savage v. City of Springfield, No. 3:18-cv-30164-KAR, 2022 US Dist LEXIS 124587, at *27 (D. Mass. July 14, 2022) (“In ruling on the defendants’ motion to dismiss, this court held that Plaintiffs had adequately alleged that they were subjected to a hostile work environment” based on another employee’s racist social media posts); Watson v. Phila. Parking Auth., No. 21-1514, 2022 US Dist LEXIS 27628, at *2-3 (E.D. Pa. Feb. 16, 2022) (Court dismissed hostile work environment claims after plaintiff was fired for posting sexually explicit comments on his social media but claimed he was fired for being gay); Fedder v. Ohio Med. Transp., Inc., No. 2:23-cv-627, 2023 US Dist LEXIS 68936, at *5 (S.D. Ohio Apr. 19, 2023) (Court dismissed plaintiff’s hostile work environment claim against employer after she was fired for posting social media material critical of law enforcement).
However, while an employee can be fired for what he or she posts on social media, employers should ensure that when they craft workplace policy on social media, that they are in compliance with the National Labor Relations Act (“NLRA”), particularly Section 7 and 8(a)(1). Section 7 protects “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” Meanwhile, Section 8(a)(1) of the Act makes it an unfair labor practice for an employee to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” See, e.g., NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017) (holding that the NLRB did not err in concluding that employer had violated NLRA by terminating an employee based on a post urging other employees to unionize, even where the post was filled with profanity and vulgarities, given that the employee was not in the presence of customers and was not disruptive to the workplace and in light of evidence that profane language was commonly used and employer had a long history of tolerating profanity among its workers). However, it is crucial to note that the National Labor Relations Board (“NLRB”) has stated unambiguously that language in work rules prohibiting harassment and bullying online, even after work hours, is permitted and does not run afoul of the NLRA. The NLRB provided a test example of language that was found to be lawful under the NLRA: “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.” Anne Purcell, Memo. OM 12-59, Report of the Acting General Counsel Concerning Social Media Cases, 13, (May 30, 2012)
[21] Tannous v. Cabrini Univ., No. 23-1115, 2023 U.S. Dist. LEXIS 179616, at *11 (E.D. Pa. Oct. 4, 2023) (dismissing a Title VII discrimination claim brought by a Palestinian-American professor who was terminated after his Twitter posts were publicized as antisemitic because accusations of being a racist, even if false, is not the same as discrimination on the basis on one’s race); Ledda v. St. John Neumann Reg’l Acad., No. 4:20-CV-700, 2021 U.S. Dist. LEXIS 31043, at *16 (M.D. Pa. Feb. 18, 2021) (dismissing complaint alleging discrimination under Title VII based on plaintiff being labeled a racist because “[r]acism is a state of mind or a belief, whereas race is a state of being” with the former not being protected under Title VII); see also Lovelace v. Wash. Univ. Sch. of Med., 931 F.3d 698, 708 (8th Cir. 2019) (in deciding a racial discrimination claim under Missouri state law, holding that “[w]hile ‘falsely accusing someone of being a racist is morally wrong,’ such accusations cannot form the basis of an MHRA racial discrimination claim.” (internal citations omitted)).
[22] CA Labor Code § 96(k) & 1101 (2022). California Labor Code Section 1101 bars an employer from adopting, making, or enforcing any regulation that prevents an employee from taking part in politics or controlling the political affiliations of its workers. California Labor Code Section 1102 bans an employer from influencing or attempting to coerce its employees through the threat of discharge to refrain from following any particular course of political action or activity.
[23] A.836, eff. March 12, 2024.
[24] Doe v. City of Detroit, 3 F.4th 294, 301 (6th Cir. 2021) (An employer’s response is generally adequate “if it is ‘reasonably calculated to end the harassment.’”); Fisher, 192 F. Supp. 3d at 329 (denying summary judgment on a hostile work environment against former employer when (1) employer was notified of a co-worker’s Instagram post comparing Plaintiff to a fictional chimpanzee from the Planet of the Apes movie and (2) did not take sufficient steps to prevent further discrimination or hostile conduct) Additionally, in La Porta v. Alacra, Inc., after a male coworker sent unsolicited and offensive comments to plaintiff regarding her “boobs” on social media, “[i]nstead of correcting [the perpetrator] or otherwise meaningfully reassuring plaintiff that he would not follow up on his sexually offensive message with the further sexual harassment he was known to have proclivities for, Alacra’s managers rebuffed plaintiff and completely isolated her for the remainder of her stay at the company.” The Court ultimately held that plaintiff had a meritorious claim against her employer for sexual harassment creating a hostile work environment, constructive discharge, and retaliation under New York City Human Rights Law. 142 A.D.3d 851, 852 (1st Dep’t 2016).
