Can a social media firestorm be the basis for an employment decision? Although it may seem like a lifetime ago, in the spring of 2020, the internet’s attention turned to a viral video of a white woman in 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 they did not condone racism of any kind and ultimately terminated her employment. She filed a lawsuit claiming race discrimination, sex discrimination and defamation. The federal court in New York dismissed her claims. 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 they 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 do this means 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.” The court noted that the company’s tweet simply said they 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.

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.”

The plaintiff also attempted to show that the employer’s decision was based on her sex, claiming 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, the company may be tempted, as Franklin Templeton was, to publicly distance themselves 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 EEO policy and your core values. The conduct may or may not violate a policy but check.

• 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?

• Remind employees that their actions outside of work may affect the reputation of their employer, 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.

• 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.