Context matters when deciding if social media posts are 'protected activity'.

 
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Some employee speech on social media may end up classified as protected activity if it can legitimately be classified as a protest against what would be illegal discrimination under laws like Title VII. For example, a post could be viewed as an objection to an employer's alleged race discrimination or some other form of unlawful bias. It might then be viewed as protected activity under Title VII. And if an employer discharges an employee for engaging in protected activity, she might have a retaliation claim.

Recent case: Mindy worked as a district manager for Victoria's Secret, the lingerie chain.

Mindy's Facebook profile mentioned her job title, and her profile picture showed her standing outside a Victoria's Secret store. Many of her Facebook friends also worked for the company.

Her Facebook account was set to be publicly accessible, not just available to her Facebook friends.

Victoria's Secret maintains a hotline for reporting workplace concerns. An anonymous caller reported through the hotline that Mindy had allegedly made several disturbing posts on Facebook. The caller also claimed Mindy had made racist comments on the job and had refused to hire black applicants. Those were the first complaints about Mindy that the company ever received.

Two Victoria's Secret HR professionals launched an investigation and quickly located the posts that the complaint identified.

The first was a reposted picture depicting a person wearing a Ku Klux Klan-reminiscent white, hooded robe emblazoned with the Los Angeles Clippers logo. It was captioned "Game 5 in LA is Free Sheet Night ...Donald Sterling Bobble head doll night too!" (Donald Sterling, the former owner of the Los Angeles Clippers basketball team, was banned from...

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