Thumbs Down? Victoria’s Secret Must Stay Secret Employer Justified in Firing Over FB Posts

August 10, 2017

While the right to free speech is a constitutional right, free speech in the workplace is abridged as the employer can take action.  The Third Circuit found that Victoria’s Secret permissibly fired an employee who publicly sharing pictures on Facebook that the employer found offensive. The posting allegedly, were supposed to ironically protest against racism, but the Court held divining intent is not a function it would delve into, and if the employer found it distasteful it could negatively reflect upon the company and they were justified in the termination. Evidently, Victoria’s Secret likes to keep things secret and its employees are functionally on notice that public postings that indirectly link back to the employer will not be tolerated if they deem offensive in their sole discretion.

The first picture in question was captioned “Game 5 in LA is Free Sheet Night… Donald Sterling Bobble head doll night too!” which was a reference to the former owner of the Clipper who was banned for basketball for racism.  The second post, was a picture of an African American woman named “Airwrecka McBride” with the comment that “I’ve been spelling Erica wrong my whole life.”

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The U.S. Court of Appeals for the Third Circuit upheld her firing as did the District Court. Caplan v. L Brands/Victoria’s Secret Stores affirmed the ruling from the Western District of Pennsylvania although indicated the opinion may be non-precedential, but it is hard to see how it would not be cited.  The defense Caplan tried to mount that the post was actually a statement against racism and the other post was supposed to be funny so it was protected speech was squarely rejected.  Third Circuit Judge Theodore A. McKee, read the post as “satiriz[ing] the atypical spelling of an African American woman’s name,” and thus Victoria’s Secret could fire Caplan.  “However, even if this post was intended as a protest against racism, and therefore fell under the protective umbrella of the First Amendment, Caplan’s claim still fails given the Airwrecka post.”

The ruling is a bit odd since interpretation of intent is usually an issue of fact for a jury to decide and not an issue for the Court to conclude, but the emerging trend in discrimination cases is for the Court to throw out matters absent smoking gun proof and the Court here was broadcasting a message. This sharply contrasts with Fair Labor Standards Act (FLSA) actions which involve wage and hour disputes and proper overtime pay which are generally objective questions for a Court to decide whether someone was paid properly.  Also, contrasted are Qui Tam cases, also known as False Claims Act (FCA) which involve whether individuals filed false claims with the government for payment and are on the rise.
In any event, employees beware.  Victoria’s Secret may have seen through lingerie, but things they can see like Facebook posts, may result in discipline.