A lawsuit stemming from a viral confrontation between a White woman and a Black birdwatcher in Central Park is the latest legal challenge to test an employer’s response to social media backlash.
Amy Cooper on May 25 accused
Similar litigation has been filed against employers in recent years for firings over activity outside of work, particularly with the prevalence of social media, but those cases are difficult to win, attorneys and academics say. For example, a Virginia state judge in 2018 dismissed a wrongful discharge claim filed by a woman fired for a photo that went viral of her raising her middle finger at President
Private employers can generally fire workers for any legal reason, with some exceptions. Workers can get protections requiring that employers have just cause to fire them via union contracts or employment agreements.
“But even if you have a legal reason to fire somebody, you can still be sued for how you fired them,” said Kenneth Dau-Schmidt, a workplace law professor at Indiana University.
Cooper’s lawsuit reflects shifting public sentiment around what constitutes a fireable offense and how far employers can reach to justify employment decisions based on allegations, said Stacy Hawkins, a professor at Rutgers University Law School.
There’s been an exponential increase in employers’ reactions to employee conduct outside of the workplace, Hawkins said, especially in the context of the recent Black Lives Matter protests and Jan. 6 riots at the U.S. Capitol.
“We might be rethinking where the law stands in terms of employers’ abilities to say what is or isn’t subject to adverse employment action for employees’ conduct far outside of their sphere of employment,” Hawkins said.
Bias, Defamation Claims
In her lawsuit filed in New York federal court, Cooper said publicity caused the Central Park incident to become “international news as a racial flashpoint.”
She alleged Franklin Templeton discriminated against her based on race and sex because she wouldn’t have been targeted if not for being a White woman. The company also broadcast her firing on Twitter in terms that implied she is a racist, and falsely suggested to multiple media outlets it conducted an investigation before firing her, she said.
The company said in a Wednesday statement, “We believe the circumstances of the situation speak for themselves and that the company responded appropriately. We will defend against these baseless claims.”
Cooper’s attorneys Andrea Paparella and Matthew Litt said, “Society will benefit from taking time and considering the whole story before destroying another’s life.”
How You Fire
Previous cases have explored the risks employers face over how they fire their workers, even if the terminations themselves are ultimately legal.
In Kentucky, for example, the state high court in 2004 ruled in favor of
The workers didn’t challenge their terminations, but instead sued for defamation and other claims because the company implied they were thieves and used surveillance tapes of them in training videos.
To the extent Franklin Templeton made any false statements of facts in Cooper’s case, it would be difficult for Cooper to show that those statements are what caused her to be harmed, particularly since her name and photo were fodder for late-night television hosts, Adam Pulver, an attorney at Public Citizen Litigation Group. He is a former U.S. Labor Department civil rights attorney.
“Whether someone is a racist or not is a matter of opinion, and thus someone saying you are is not likely to be found defamatory,” he said in an email. “And whether an employer’s investigation was ‘fair’ or not is also not one a court would likely consider a fact possible of being proven true or false.”
Franklin Templeton fired Cooper not just for the incident itself, Rutgers University’s Hawkins said. The public condemnation turned into a public relations nightmare, and the easiest way to end it was through firing a non-vital employee, she said.
The case is similar to the firing and subsequent indefinite ban of former Baltimore Ravens football player Ray Rice, who was initially given a slap on the wrist after being arrested and charged with assault on his fiancée in 2014.
Only when a video surfaced of the altercation, leading to massive fan uproar, did the Ravens terminate Rice’s contract and the NFL indefinitely suspend him. According to Hawkins, public outcry played a similar role for Cooper.
Hard to Prove
Ultimately, workers who accuse their former employers of unlawful terminations for activity outside of work face an uphill battle.
Cases on race discrimination and defamation grounds are hard to prove, said John Diamond, professor at University of California, Hastings Law School.
“What happened here is that they concluded her actions were racist—that word includes a lot of things, conscious and unconscious,” Diamond said. “There’s been a lot of discussion about what racism is.”
Public Citizen’s Pulver added that it will be challenging for Cooper to show she was treated differently by her employer because of her race or sex, “no matter what names people called her on the internet.”
Michael Eastman, the senior vice president of policy and assistant general counsel for employer-focused group the Center for Workplace Compliance, agreed.
“What is the evidence that her former employer terminated her because of race or sex? Courts generally won’t second-guess HR decisions,” he said.
If employers are terminating or disciplining employees, he said he’d advise them that the reasons for doing so should be “job-related and that they are accurately and contemporaneously documented.”
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