Online petition legal issuesEmployers have a new concern with job offers and social media; In what appears to be a first, a federal court of appeals held an employer could be liable for rescinding a job offer because the prospective employee signed an online petition supporting issues under the federal Fair Housing Act (FHA).

Specifically, in Linkletter v. Western & Southern Fin. (3/23/17), the plaintiff, Gayle Linkletter, was offered a position with Western & Southern Financial Group. At the time the offer was made, Western & Southern was engaged in a lengthy real estate dispute with a women’s shelter over its location in the neighborhood. Residents of the Anna Louise Inn women’s shelter had sued Western & Southern in federal court under the FHA.

While the dispute between the shelter and Western & Southern was ongoing, Linkletter signed a petition expressing support for the shelter. The petition was titled, “The Anna Louise Inn has my Support!” It also stated, “I support the mission of the Anna Louise Inn, which has provided safe and affordable housing for women for 102 years in its current location.” As a signor, Linkletter also stated that “[the] Anna Louise Inn should remain where it is and continue its mission of providing safe and affordable housing for single women.” The Inn posted the petition online with the names of the signors, including Linkletter.

Before Linkletter began working, Western & Southern’s Senior Vice President of Human Resources called Linkletter to notify her that Western & Southern had rescinded the employment offer. Linkletter said she was told the rescission due to Linkletter having taken “a position that was contrary to Western & Southern” and Senior VP mentioned Linkletter’s support for the Anna Louise Inn.

Linkletter sued Western & Southern. Her suit argued that Western & Southern violated the FHA as it related to her. On this point, the FHA makes it “unlawful to coerce, intimidate, threaten or interfere with any person” for having “aided or encouraged any other person in the exercise” of the rights granted by the act. Linkletter argued that she was protected by this provision because her would-be employer interfered with her employment because she aided or encouraged women in the exercise of their housing rights under FHA.

The lower court dismissed the case because the petition didn’t “aid or encourage” the women of the inn as contemplated by the law. That decision was reversed on appeal.

Linkletter’s action, signing a petition, is seemingly innocuous. However, the language and timing of the petition demonstrate that it existed to encourage the women to remain in their residence in opposition to the alleged discrimination by Western & Southern … Linkletter signed the petition to “encourage” the women in their dispute with Western & Southern

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the defendants fail to explain why a petition-signing is not encouragement beyond vague assertions that the action lacks “concreteness” or “directness.” The allegations in the complaint show that the action was concrete and important enough to alert Linkletter’s future employer to her public support, and result in her termination. If the encouragement is sufficiently concrete to lead to an individual’s firing, it is sufficiently concrete to state a plausible claim.

Employment Protections Extended to Online Petitions and Activity

The Linkletter decision was issued by the Sixth Circuit Court of Appeals, which covers Michigan. This decision also means that an employee signing a petition, at least under certain circumstances, may be protected activity. While this case involved the FHA, its reasoning would extend to other situations where an employee or job applicant signs an online petition or voices support through Facebook to support co-workers or people attempting to uphold their statutory rights.

For example, Title VII prohibits discrimination on the basis of the employee’s friendship with or advocacy on behalf of a member of a protected class. See Barrett v. Whirlpool Corp., 556 F.3d 502 (6th Cir., 2009) (Title VII extended to Plaintiffs who were not members of the protected class but claimed they were discriminated against because they were friends with and spoke out on behalf of their African-American co-workers).

Also, readers of this blog know that employers have repeatedly faced liability for disciplining employees for Facebook postings that implicate rights under the National Labor Relations Act. See NLRB Once Again Wades Into the Lawfulness of Employer’s Workplace Policies or NLRB Finds Employer’s Workplace Rules Violated Federal Labor Law.

Considering the political environment and how technologically allows anyone to publicly communicate their support or opposition on any issue, employers must carefully evaluate the reasons behind any termination to avoid unintended liability.

For more information about employment and social media law, contact attorney Jason Shinn. He routinely works with clients to address issues at the intersection of technology and the workplace.