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Why employers shouldn’t mine employees’ social media accounts

By Jonathan Hyman on August 26, 2026
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A federal judge just told Southwest Airlines what it can’t look at on Facebook.

The court entered a permanent injunction barring Southwest from “proactively searching for, relying on, or using” Charlene Carter’s religious statements — including her posts about abortion — in any future discipline, discharge, or other adverse action.
Here’s the backstory. Southwest fired Carter after she sent her union president graphic anti-abortion images and video. She sued both Southwest and the union under Title VII for religious discrimination. In 2022, a jury awarded her $5 million (later reduced to $800,000), finding that employer and union discriminated and retaliated against her for her religious views. The 5th Circuit sent the trial court’s injunction back down as overbroad. This is the judge’s narrowed version.
Employers think that Title VII protects only their conduct, not their curiosity. It doesn’t work that way.
Employees generally have no 1st Amendment rights against a private employer policing their off-duty speech. I’ve written that sentence in posts more times than I can count. But Title VII doesn’t ask whether an employee had a free speech right. It asks whether a protected characteristic — here, religion — tainted the employer’s motive for taking action.
Seeking out Carter’s religious posts and then using them against her isn’t a speech violation. It’s evidence of discriminatory intent under Title VII. That’s the entire ballgame, and it’s why the injunction targets the searching and relying on, not just the disciplining.
Employers, here are your cues from this injunction:
1. Don’t go looking for an employee’s posts about religion, health information or disabilities, or any other protected characteristic to build a disciplinary file.
2. If a post lands in your lap unsolicited, document why you’re acting (or not acting) independent of the protected content.
3. A pattern of “we only checked her page” is Exhibit A in every failure-to-treat-similarly-situated-employees argument your plaintiff’s counsel will make. It will also make that much harder to argue to a judge or jury that you didn’t rely on the information that you found.

Employees don’t have 1st Amendment free speech rights to enforce against you. But you still need a legitimate, non-discriminatory reason for looking — and then for using what you find.

     

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Photo of Jonathan Hyman Jonathan Hyman
Jon Hyman is a trusted advisor to small and mid-sized businesses across various industries, helping them solve workforce challenges and defend against legal disputes.
He is a shareholder at Wickens Herzer Panza in Avon, Ohio, where he chairs the firm’s Employment and Labor
…
Jon Hyman is a trusted advisor to small and mid-sized businesses across various industries, helping them solve workforce challenges and defend against legal disputes.
He is a shareholder at Wickens Herzer Panza in Avon, Ohio, where he chairs the firm’s Employment and Labor practice group and its Craft Beer practice group, and serves on the firm’s Board of Directors. Jon works closely with clients on all aspects of labor and employment law, providing proactive solutions to prevent issues and a strong defense in litigation when conflicts arise.
As outside in-house counsel, Jon is the go-to advisor businesses call when they need help with employee terminations, drafting policies, handling leave or accommodations, or navigating tricky internal complaints. He also brings deep expertise in areas like wage and hour compliance, workplace technology issues, and union avoidance. Jon builds lasting partnerships with his clients, understanding their unique challenges and helping them achieve long-term compliance and success
When it comes to litigation, Jon stands up for businesses in disputes over discrimination, harassment, wrongful discharge, non-competes, trade secrets, wage and hour issues, and union matters. Jon works with his clients to craft targeted defense strategies that protect their interests and aim for resolutions that support their broader business goals.
Jon also leads the firm’s Craft Beer practice, where he helps breweries, brewpubs, taprooms, and other craft beer businesses tackle their unique legal and regulatory needs.
Jon writes the award-winning Ohio Employer Law Blog, which the ABA Blawg Hall of Fame recognized for its daily insights on labor and employment law. His updates help his clients, HR professionals, and other business leaders stay ahead of labor and employment law changes that impact their daily operations.
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  • Posted in:
    Employment & Labor
  • Blog:
    Ohio Employer Law Blog
  • Organization:
    Wickens Herzer Panza
  • Article: View Original Source

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