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Can You Fire Someone For Their Social Media Posts?
Editor's Note
Can You Fire Someone For Their Social Media Posts?
An employee says something on their personal social account that makes a client or executive upset. Can the employer fire them?
Who the heck knows these days. But here's where to start.
First, there is no Constitutional right to free speech at work because the First Amendment only applies when it's the government who is trying to restrict speech. Private employers can generally restrict employee speech at work. It's often necessary to protect confidential and proprietary information. And even when the employer is the government, there are rules about what public employees can and can't say, mostly related to protecting sensitive information.
Second, all employees have the right to discuss wages, hours, working conditions with each other, even when it's in public or on social media. There are usually a big factual questions about whether the specific post is protected based on what was said and who was actually the intended audience. But sometimes the speech is protected under the National Labor Relations Act.
Third, some states have laws that protect employees from being disciplined for their political opinions. Right now, the definition of "political opinion" can theoretically include almost anything, particularly if it garners hot takes on any form of media. So, there's often no clear call on whether what the employee said was "political."
Fourth, states also have laws that protect employees from being disciplined for off duty conduct unless the conduct directly and negatively affects the employer. These cases also always have big factual issues because you don't judge the situation by who got mad afterwards. Instead, you look at what the employee said or did and whether it was likely that it would negatively affect the employer at the time the employee said or did it.
Last, don't make employees put those silly disclaimers in their bios about their opinions not being those of their employer's. These statements have no legal effect. It all depends on what happened and what the actual law is. They can also backfire. Requiring employees to use disclaimers demonstrates that the employer is influencing what the employee can and cannot post on their personal social account. This evidence of employer control actually increases the likelihood that the employer may be responsible for what the employee said if some third party claims it harmed them. This creates new and additional issues.
In other words, dealing with employee social media posts is a complete cluster and there is no policy that will save you. That does not mean don't have a policy. It means get help from your friendly employment lawyer so it is consistent with the law.
As for the case below, I can't make sense of it. A gay, Christian, male attorney claims he was discriminated against because he was fired for being critical of gender affirming care for trans people on his personal social media account. The employer advocates for LGBTQ+ rights and there is evidence that someone complained that the post was not consistent with the employer's values.
But the employer also claims that the real problem was the employee's performance, which we know nothing about.
The thing that bothers me most here is that the employee did not plead a state cause of action that would have actually provided a stronger case for him. Instead, his claim is in federal court under Title VII for religious, gender, sexual orientation, and retaliation, none of which seem to relate to the employee's opinion on trans medical care.
- Heather Bussing
by Jason Plowman, Kathleen Weron, and Leah Shepherd
An in-house attorney recently sued his former employer in a Utah federal district court for discrimination and retaliation under Title VII of the Civil Rights Act of 1964, alleging he was unlawfully fired after posting social media remarks criticizing gender-affirming care for transgender people and opposing a Utah nonprofit organization that advocates for LGBTQ+ rights.
Quick Hits
- A former employee in Utah recently brought a federal lawsuit, claiming he was fired for criticizing on social media a LGBTQ+ rights nonprofit that partnered with his employer.
- The gay Christian employee is alleging sex, sexual orientation, and religious discrimination in violation of Title VII of the Civil Rights Act of 1964.
- The case is in the U.S. District Court for the District of Utah.
On May 22, 2025, a former employee for a Utah-based software company sued the company for discrimination and retaliation after he was fired a few months after he posted comments on social media criticizing gender-affirming care for transgender people and critical of Equality Utah’s policy positions. Equality Utah is a local nonprofit that supports LGBTQ+ rights.
The plaintiff, a gay Christian man, worked as in-house counsel. He alleged the software company discriminated against him based on his religion, sex, and sexual orientation, and retaliated against him for invoking nondiscrimination protections.
In February 2023, the plaintiff posted remarks on his social media account opposing Equality Utah’s positions regarding gender-affirming care for transgender children. The software company had earned a business equality leader certification from Equality Utah and partnered with the organization for trainings on diversity, equity, and inclusion (DEI). A leader at Equality Utah complained several times to the plaintiff’s employer about his social media comments on the plaintiff’s personal social media account and his account as president of the Utah Log Cabin Republicans.
In October 2023, the company fired the plaintiff, citing poor performance.
The plaintiff’s federal complaint alleges sex discrimination and religious discrimination under Title VII of the Civil Rights Act of 1964, but did not assert a claim under Utah’s Antidiscrimination Act.
Utah’s Antidiscrimination Act prohibits Utah employers from taking adverse employment action against employees for “lawful expression or expressive activity outside of the workplace regarding the [employee’s] religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.” The state law permits workers to express “religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way.”
The case raises questions about what employers can include in their social media policies and how such policies may be enforced. While the free speech rights in the U.S. Constitution do not give private employees free rein to say whatever they want on their personal social media accounts, other laws such as Title VII and their state law equivalents may provide protection. In some circumstances, employers may lawfully discipline or fire employees for disparaging the employer or using offensive language on social media, particularly if the post includes references to the company name or logo.
But at the same time, under the National Labor Relations Act (NLRA), private employees have the right to discuss wages and the terms and conditions of employment, which may include religious discrimination or sex discrimination in the workplace. This case is also a good reminder that even within a protected category, there may be conflict in viewpoints, and employers may want to be prepared to respond to such disagreements.
Next Steps
Employers may want to develop and distribute to employees a well-crafted social media policy that respects employees’ legal rights, including protections under state and federal law, and that also maintains workplace standards and protects business interests.
Employers that are developing or updating their social media policies may want to consider the following key principles and tips:
- Including in the written policy specific examples of acceptable and unacceptable commentary and conduct.
- Making it clear that employees must not use the company’s name, branding, or position themselves as speaking on behalf of the company without authorization.
- Applying and enforcing the social media policy consistently with all employees in order to prevent claims of discrimination or retaliation.
- Periodically reminding employees and managers about the social media policy.
- Training supervisors and managers about what constitutes protected activity under the NLRA.
- In Utah, taking care not to take adverse action against employees for lawful expression outside the workplace involving religious, political, or personal convictions, including matters such as marriage, family, or sexuality, unless the expression directly conflicts with the employer’s essential, business-related interests.
