Ask an Expert: Online Behavior

Can we force an employee to take discriminatory statements off a personal Facebook page?

By Patricia Graves, SHRM-SCP May 27, 2021

​Forcing an employee to remove statements from a personal Facebook page or other social media platform typically would involve taking legal action. However, when a statement on social media violates anti-discrimination laws or company policy, the employer would generally be within its right to require the employee to remove the statement; the employee’s refusal to do so may trigger disciplinary action or termination. Let’s consider a few issues. 

Most employees have a false understanding of free speech associated with social media and may feel a sense of freedom or protection in posting controversial statements on online platforms. Discriminatory, false or disparaging statements posted on personal social media pages aren’t beyond an employer’s reach. Violating a company’s policy or code of conduct will generally support an employer’s request to have a post removed. 

Creating a social media policy that addresses offensive and inappropriate conduct and that communicates the company’s core values is instrumental in setting clear expectations for employees regarding both on- and off-duty conduct. Informed employees will be more aware of the impact social media posts may have on others and the employer’s brand and will better understand what is acceptable.

An employer also should ensure that a statement on social media isn’t protected by federal or state law. Social media posts that engage co-workers in dialogue regarding working conditions such as pay equity, scheduling issues or even complaints about a supervisor are likely protected under Section 7 of the National Labor Relations Act. Employees engaging in protected concerted activity wouldn’t be required to remove a statement no matter how damaging it may be for an employer. Additionally, five states—California, Colorado, Louisiana, New York and North Dakota—offer protection from employer retaliation for engaging in lawful off-duty conduct and political activities, but not for making discriminatory comments or engaging in illegal activities.

Implementing a detailed social media policy and carefully examining whether a questionable statement made by an employee online violates company policy or anti-discrimination laws will help employers establish a standard process for addressing employees’ social media activity going forward. 

Employers should also regularly review and communicate the company’s policies, code of conduct and core values so employees are aware of what types of behaviors may be unacceptable. 

Fostering inclusive workplaces assists employees in understanding others. Organizations with inclusive cultures may also create environments that help to reduce offensive and hateful speech in social media posts.  

Patricia Graves, SHRM-SCP, is an HR Knowledge Advisor for SHRM.

Image by Mpliskin/iSTock.



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