Workers who post offensive comments on social media put bosses at risk of lawsuits

NEW YORK – When one of Ileaa Swift’s employees posted homophobic comments on Facebook, the reaction was quick.

“It posted around 1 in the morning. The next morning, when I got up, I had all these calls and emails and hate mail,” said Swift, owner of Swift Travel Deals in Little Rock, Arkansas.

Whether it’s comments about news events, long-held beliefs or a badly timed joke, an employee’s offensive posts on Facebook, Twitter and other popular social media sites can damage a company’s entire image and hurt its profits. If the social media comments are racist, homophobic, sexist or against a religious group, tolerating discriminatory comments puts an employer at risk for lawsuits and losing its customer base.

Small businesses are typically unprepared when they are thrust into the spotlight in such a negative way. While many large companies have social media policies, small companies often don’t.

Superstar or not

When Swift’s staffer posted her comments on the travel agency’s Facebook page last fall, Swift warned her to stop.

“They didn’t agree with what we stand for,” Swift said.

The staffer persisted, moving her comments to her own page. The employee’s online arguments with people enraged by her posts cost the company business, including bookings from gay and lesbian clients.

Swift fired her.

“It’s one of the hardest things I’ve had to do because she was a superstar agent, but we have to respect (our customers),” Swift said.

Not alone

Brown’s Car Stores, an auto dealership chain in the Washington, D.C., area, posted a notice on its website late last year stating it took action in response to an employee’s “racist and other inappropriate posts” and that the person no longer worked for Brown. Emails and phone calls seeking comment were not returned.

Roy E. Abbott Futures in Minneapolis posted a notice on its website last month saying it condemns “any and all racist, ethnic and sexual or gender discrimination of any kind,” and it was looking into an incident involving one of its brokers. Later that day, it said the broker was no longer associated with Abbott. The company declined comment beyond what was on the website.

Duty to act

Employers must take disciplinary action when they learn about posts containing language attacking people for their race, sexual orientation, gender or religion, said Nicholas Woodfield, an attorney with the Employment Law Group in Washington, D.C. If the worker isn’t fired, employers can be sued under federal and state anti-discrimination laws for allowing a hostile environment to exist in their companies.

“You are required by law to maintain a diverse and respectful workplace,” Woodfield said.

Get expert help

While clearly discriminatory posts can be grounds for dismissal, owners still need to be sure they’re on solid legal ground, said Jay Starkman, CEO of Engage PEO, a human resources provider based in St. Petersburg, Florida.

He recommends employers consult human resources providers or employment law attorneys. Lawsuits brought by fired employees are expensive, and if a court determines a termination was wrongful, the costs could be crippling.

Comments on social media may offend some people but might not be enough grounds for dismissal. For example, a man whose wife just filed for divorce posts, “I hate women.” A court might call that venting, not discrimination against women.

Create a policy

Human resource professionals and employment law attorneys recommend written social media policies. Run the policy past a professional to make sure it would hold up in court.

“They need to have some guidelines (for employees) out there,” attorney Woodfield said.

Swift has changed her social media policy so her staffers can’t post on the company’s page. She also monitors their personal pages.

“I do make sure that there’s nothing there that would be detrimental to our company.”