The United States Court of Appeals for the Third Circuit affirmed summary judgment in favor of American Airlines, Inc. (American), and against a former employee who claimed that she was terminated based on gender and/or disability discrimination, in Koslosky v. American Airlines, Inc., Docket No. 20-2081 (3d Cir. Sept. 27, 2022).

Summary

Koslosky worked as a customer service agent for American at the Philadelphia International Airport. In August of 2016, she requested disability accommodation that she be assigned to work exclusively at gates in Terminal B due to edema and nerve damage in her leg that limited her ability to walk. After reviewing her request for accommodation, American’s HR department denied the request, but instead offered to accommodate Koslosky by assigning her exclusively to other roles that did not require excessive walking. A year later, Koslosky submitted another request for the same accommodation (citing the same reasons), which the HR department again denied, offering the same alternative accommodations it did a year prior. Koslosky again refused American’s alternative accommodation, and appealed to American’s most senior employee at the Philadelphia Airport, who granted Koslosky’s request. On August 2, 2017, Koslosky was assigned exclusively to Terminal B.

The following month, Koslosky made several racist posts in her public Facebook that went viral. One stated essentially that Black Americans should be thankful that their ancestors were brought to America as slaves. Another post featured a t-shirt emblazoned with the question, “Have you lost your cotton pickin’ mind?” A third post urged blue-eyed people to “UNITE.” Koslosky also identified herself as an American employee on another post.

Both American employees and customers expressed their outrage to the company about Koslosky’s posts which American’s CEO commented, “became a large PR [public relations] incident for the company.”

As a result, American initially suspended Koslosky, and in October 2017 terminated her employment for violating American’s social media, passenger service conduct, and work environment policies. Koslosky admitted to posting the offensive contents.

The Lawsuit

Koslosky filed a lawsuit against American in federal district court claiming that her termination constituted unlawful gender and/or disability discrimination. The district court entered summary judgment in American’s favor on all counts. Koslosky then appealed to the Third Circuit.

The Third Circuit affirmed the district court’s decision. It found that Koslosky failed to demonstrate that American’s termination of her employment was pretext for any unlawful discrimination. Rather, the court concluded that American fired Koslosky because her racially insensitive social media posts violated its policies and generated an outcry from employees and customers which is a legitimate reason for her termination.

Takeaway

Though not precedent-setting, Koslosky demonstrates that employers can take disciplinary actions against their employees for racially offensive social media posts if such posts violate the employer’s policies. Employers should evaluate their policies regarding social media, rules of conduct, and work environment to ensure that employees know that racially (or other protected class) offensive posts on social media might result in disciplinary action including termination. Employers should also note that, while not raised in the Koslosky case, a social media post that raises complaints or concerns about the workplace might be protected concerted activity under the National Labor Relations Act. Employers who become aware of an employee’s offensive social media post should consider seeking legal counsel to determine the appropriate response. HEC members may also contact their HR Consultant or call our hotline at 808-836-1511 for guidance on social media policies or to discuss specific situations.