NJ Appellate Division upholds employee termination for racist Facebook posts

A New Jersey Appellate Division panel recently affirmed the dismissal of an employee’s case holding her termination wasn’t in violation of her free-speech protections. After losing her job for posting racist comments on social media, the worker learned freedom of speech, like all rights, isn’t absolute.

Facts

Heather J. McVey joined AtlantiCare Medical System as a nurse in 2005. Over the next decade and a half, she received various promotions leading up to her final role as corporate director of customer service. She displayed her job title and the employer’s name on her private Facebook profile, thereby associating herself with the company.

AtlantiCare maintained a written social media policy, which cautioned employees (especially those who identify themselves on social media as working for the company) to take “proper consideration of privacy and of topics that may be considered objectionable or inflammatory—such as politics or religion.” The policy didn’t prohibit a substantial portion of speech on social media. Rather, employees were asked to “respect your audience and your coworkers.”

After the death of George Floyd, McVey responded to an open-ended Facebook post asking: “Do you believe the phrase ‘Black Lives Matter’ is racist, or does it bother you in any way? If so, why? (Feel free to direct message me, not trying to argue, just seeking to understand).” In reply, McVey wrote:

Yes, I find it racist. Yes, it bothers me. “Black Lives” matter causes segregation. Have you ever heard of ‘white lives’ matter or ‘jewish’ lives matter? No. Equal opportunity.