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In Jungclaus v. Waverly Heights Ltd, No. 22-1908, 2023 WL 2182373, at *1 (3d Cir. Feb. 23, 2023), Kathleen Jungclaus worked at Waverly for almost 20 years, initially as Waverly’s Human Resources Director and then as Vice President of Human Resources. While in that role, Jungclaus help draft the employer’s social medial rule, which provided: (1) employees should not mention other employees in their social media posts without receiving their permission; (2) “behavior that is not permitted in the workplace is also prohibited on social media”; and (3) violating this social media policy is grounds for termination of that employee’s job.

On July 24, 2016, Jungclaus tweeted at then-presidential candidate Donald Trump: “@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!” This upset many African American employees under her supervision. Not only was Jungclaus’s Twitter account public, but it also connected her to Waverly. Based exclusively on this Tweet, the employer fired Jungclaus.

Jungclaus, who had no direct evidence of discrimination, asserted a single argument on appeal: the employer engaged in a “discriminatory double standard” in firing her Waverly Board of Trustees member, Chuck Soltis, allegedly circulated offensive political material at the company and was not fired.

Jungclaus sued her former employer, Waverly Heights, LTD, for gender/sex and age discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1964 and Age Discrimination in Employment Act of 1967 (“ADEA”). In addition to gender, Title VII also makes it unlawful for employers to discriminate against employees based on race/color, national origin, gender identity, and religion.

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Do private employees have a right of free speech at work?

Private employees generally do not have an absolute right to free speech at work. The First Amendment of the U.S. Constitution protects free speech against government interference, but it does not extend to the private workplace. In general, private employers have the right to set their own rules regarding speech and conduct in the workplace, as long as those rules do not violate other laws or regulations. This means that private employers may limit political speech in the workplace or prohibit it altogether.

However, private employees do have some limited protections for free speech at work. For example, employees may have the right to discuss wages, hours, and working conditions with their coworkers, and they may have the right to engage in concerted activity for the purpose of collective bargaining or mutual aid and protection under the National Labor Relations Act.

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How do you prove disparate treatment under Title VII?

Disparate treatment refers to intentional discrimination against an individual or group of individuals based on a protected characteristic, such as race, color, religion, sex, or national origin. Disparate treatment occurs when an employer treats an individual or group differently because of their protected characteristic, and this different treatment results in harm or disadvantage. Disparate treatment is prohibited under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Under Title VII, employers are prohibited from treating employees or job applicants differently based on their protected characteristic.

To prove a case of disparate treatment, the employee must show that a similarly situated employee outside of the protected class at issue was treated more favorably.

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What does “similarly situated” mean for a disparate treatment claim?

“Similarly situated” refers to individuals who are in a comparable situation or position to the plaintiff in a disparate treatment claim. In other words, they are individuals who are similar in all relevant respects, except for the characteristic that is the basis for the alleged discrimination. Specifically, similarly situated employees must be in the same position, report to the same boss or decision maker, and engaged in the same or like conduct.

The United States Court of Appeals for the Third Circuit held that Jungclaus failed this requirement:

Her brief’s singular fixation on Waverly’s allegedly disparate handling of Soltis’s emails is inapposite. Waverly’s conduct in that separate context has no ostensible connection to its proffered rationale in this one, let alone a connection that suggests gender or age discrimination. Though it is possible to show pretext by demonstrating that “the employer treated other, similarly situated persons not of [her] protected class more favorably,” there is nothing in the record suggesting that Jungclaus was similarly situated to Soltis. Key substantive differences include their differing positions at the company (employee versus board member), their differing forms of communication (social media versus Soltis’s email), and their different audiences (the public at large versus Soltis’s private list of chosen recipients).

Id. at *3 (citation omitted).

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Who is Spitz, The Employee’s Law Firm?

Spitz, The Employee’s Law Firm has been recognized by many organizations, including Newsweek and the National Trial Lawyers Association, as being the best employee’s rights law firm in the United States. Spitz is the third largest law firm that focuses exclusively on fighting for employee whose rights have been violated by wrongful termination or discrimination based on race, national origin, gender, age, religion, sexual orientation, gender identity, or disability. If you are being discriminated, harassed, or have been wrongfully fired, you need call Spitz to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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