Will Complaints on Facebook be Protected from Retaliation?

It is important to remember that the anti-retaliation provisions of Title VII and the similar California laws go far beyond protecting those employee who complain to the employer or a government agency about discrimination or harassment at workplace. The range of activities for which firing an employee would be considered retaliatory and unlawful extends far beyond those complaints.

For instance, in Sumner v US Postal Service (1990) the court specifically pointed out that “protected activities” under the law include informal complaints, complaints or letters to customers about discrimination and expressing support for co-workers who filed formal charges. Grant v Hazelett Strip-Casting Corp. (2d Cir. 1989).  

The more difficult question, that will surely arise in the near future at a modern workplace, is whether complaining or sharing beliefs about discrimination and harassment at workplace through Facebook, Twitter and other social media channels will be considered a protected activity. Specific legislation to address and include social media will likely be necessary in order to clarify this point, as the way the anti-retaliation laws are written today does not account for social media communication of discrimination and harassment concerns by employees.  This legislation will have to take into account such factors as what is posted, where it is posted exactly, and how many people have access to viewing that posting in question, as well as whether the content reasonably identifies who the employee is complaining about.