On June 30, 2018, Lisa Ellis signed into her personal Facebook account and commented on a news story about a councilman who had been arrested for driving a car through a crowd of demonstrators protesting the untimely death of Antwon Rose, Jr., who was shot and killed by an East Pittsburgh Police Officer. Ellis commented “Total BS. He should have taken a bus to plow thru [sic].” The comment was on a public news story and because her personal Facebook account privacy settings were set to “public,” her comment could be seen by anyone. Her Facebook account also identified her as “VP at Bank of New York Mellon.”

The response to Ellis’ comment was swift, and BNY Mellon was quickly inundated by posts on its own Facebook page and calls to its ethics hotlines, asking if Ellis’ comment was consistent with BNY Mellon’s values.

BNY Mellon’s Social Media Policy warned employees to “[b]e professional and responsible when posting on external social media; you are responsible for what you post,” and “[b]e respectful and remain aware of BNY Mellon policies prohibiting unlawful harassment and discrimination and be sure your postings are in compliance with these policies.” The Social Media Policy also tells employees that their “use of external social media must also comply with BNY Mellon’s Code of Conduct” and warns that:

Your use of external social media that harms or impairs BNY Mellon’s financial or professional reputation or is damaging to BNY Mellon in any other respect may result in consequences affecting your employment status. You may be subject to disciplinary action, up to and including termination of employment if you violate this Policy.

In its Code of Conduct, BNY Mellon set forth its “Key Principles,” which included “Respecting Others” and “Supporting our Communities.” “Part and parcel” with the “Respecting Others” principle is the requirement that employees “contribute to maintaining a workplace free from aggression. Threats, intimidating behavior[,] or any acts of violence will not be tolerated.” The “Supporting Our Communities” section of the code states, in part, the following pertinent information:

We take an active part in our communities around the world, both as individuals and as a company. Our long-term success is linked to the strength of the global economy and the strength of our industry. We are honest, fair[,] and transparent in every way that we interact with our communities and the public at large.

After receiving complaints about Ellis’ post, BNY Mellon investigated and decided to terminate Ellis’ employment for violating both its Code of Conduct and Social Media Policy.

Ellis, who is white, then filed suit claiming her termination was discriminatory based on race, violating Title VII and 42 U.S.C. §1981. While admitting that no one involved in her termination made any statement relating to her race, Ellis claimed that other employees who were not white had made controversial posts on social media and were not terminated, which showed that her termination was discriminatory.

The U.S. District Court in Pittsburgh disagreed with Ellis and granted summary judgment to BNY Mellon, dismissing all of Ellis’ claims. The Court found that Ellis had provided “no evidence of discrimination.”

Ellis then appealed that decision to the Third Circuit Court of Appeals, claiming that she had offered evidence of discrimination, through non-white “comparators” who she claimed shared controversial social media posts but were not terminated. On March 3, 2021, the Third Circuit disagreed and affirmed the lower court’s opinion.

The Third Circuit found that Ellis’ post did not compare with the non-white comparators, one of which expressed frustration with a white co-worker but did not threaten the co-worker with violence, the other of which opined that men who hurt women should commit suicide. While the other posts may have been “inappropriate or ill-advised,” neither post “encouraged mass violence against protestors, as Ellis’ did,” according to the court.

The Third Circuit also agreed with the District Court that the individuals who Ellis wanted to use as “comparators” were not similarly situated—they worked in different positions, different departments, and reported to different supervisors.

Comment: Employee postings on social media have long been a thorny issue for employers. The Ellis case shows the importance of having clear social media policies that include harm to the employer’s reputation as a basis for consequences to the employee, and a code of conduct that articulates expectations. Additionally, it is essential that employers conduct prompt, thorough, and professional investigations when issues arrive.