Why employers shouldn't mine employees' social media accounts

A federal judge just told Southwest Airlines what it can't look at on Facebook.

The court entered a permanent injunction barring Southwest from "proactively searching for, relying on, or using" Charlene Carter's religious statements — including her posts about abortion — in any future discipline, discharge, or other adverse action.

Here's the backstory. Southwest fired Carter after she sent her union president graphic anti-abortion images and video. She sued both Southwest and the union under Title VII for religious discrimination. In 2022, a jury awarded her $5 million (later reduced to $800,000), finding that employer and union discriminated and retaliated against her for her religious views. The 5th Circuit sent the trial court's injunction back down as overbroad. This is the judge's narrowed version.

Waxing philosophical: workplace speech vs. anti-discrimination law

Federal anti-discrimination laws protect people, not the content of their speech. Amy Wax, a Penn law professor (who, frankly, should have known better) just learned this lesson the hard way.

The law school disciplined her for what the it labeled "flagrant unprofessional conduct" stemming from a string of statements she made—some in the classroom, others in media—that denigrated racial minorities and others, including:

• Insinuating that Black people are inherently inferior to whites.
• Asserting the U.S. would be "better off with more whites and fewer nonwhites."
• Telling a Black colleague it's "rational to be afraid of Black men in elevators."
• Dismissing interracial marriage as misguiding advertising.
• Commenting on a podcast that Black women are "single moms with a bunch of guys who float in and out."
• Saying same-sex relationships are selfish and not about community or family.
• Claiming the country is better off with "fewer Asians" and describing them as resentful and envious of Western achievements.

Wax sued, claiming that punishing her for years of inappropriate racist, sexist, and homophobic statements was discrimination against her as a White Jewish woman.

Yes, you can be fired for what you say outside of work… especially when it's hateful.

In Darlingh v. Maddaleni, the Seventh Circuit just upheld the firing of a school counselor who gave a profanity-laced anti-trans tirade at a public rally. She promised "not a single" student under her watch would "ever, ever transition," and made sure to identify herself as a Milwaukee Public Schools employee while doing it. 

She sued, claiming the school district violated her First Amendment rights by terminating her. The 7th Circuit disagreed.

"This is a business." Google CEO fired back and fired protesting employees.

"This is a business, not a place to act in a way that disrupts coworkers or makes them feel unsafe…."

Those were the words of Google CEO Sundar Pichai in a post on his company's corporate blog.

He's referring to Google's recent firing of 50 workers involved in protests against the company's cloud-computing contract with the Israeli government.