First Amendment

A recent opinion by New Jersey’s Appellate Division finds that an employee cannot bring a retaliation claim against a private employer for firing her for posting racially insensitive statements on Facebook.

Heather J. McVey was a Corporate Director of Customer Service for AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated. Ms. McVey was an employee at-will, meaning AtlantiCare had the right to fire her for any reason, or for no reason at all, as long as it did not violate the law.

During the protests following the murder of George Floyd, Ms. McVey engaged in a discussion on Facebook about the Black Lives Matter movement. She expressed her opinion that Black Lives Matter is “racist” and “causes segregation,” and that Black citizens were “not dying” but rather “killing themselves.” Ms. McVey identified herself on her Facebook profile as a Corporate Director at AtlantiCare.

Earlier this month, the United States Supreme Court ruled that the First Amendment’s freedom of religion clause bars employees who work for religious institutions from bringing any employment discrimination claims against their employers if their jobs include performing “vital religious duties.”

The decision stems from lawsuits filed by two elementary school teachers, Agnes Morrissey-Berru and Kristen Biel. Ms. Morrissey-Berru worked for a Catholic school, Our Lady of Guadalupe School. Ms. Biel worked for another Catholic school, the St. James School. Although neither Ms. Morrissey-Berru nor Ms. Biel had the title of minister, they each taught all subjects, including religion, and were required to develop and promote the Catholic faith as part of their jobs.

Our Lady of Guadalupe reduced Ms. Morrissey-Berru from full-time to part-time, and subsequently decided not to renew her employment contract. Ms. Morrissey-Berru filed a lawsuit in which she claimed the school did so because of her age, in violation of the Age Discrimination in Employment Act (“ADEA”). The school claims it made those decisions because Ms. Morrissey-Berru had difficulty administering a new reading and writing program that it implemented.

Articles Tagged with First Amendment

No Protection to Employee Fired for Racist Remarks on Facebook

Supreme Court Expands Religious Employers’ First Amendment Defense to Discrimination Claims