Sexual Harassment And Social Media: A Virtual Disaster

The case is Debord v. Mercy Health Systems of Kansas decided by the 10th Circuit on 11/26/13 [2013 U.S. App. LEXIS 23733]. For those who do not have access to Lexis/Nexis, the case may be viewed here.
 The plaintiff (Sara Debord) claimed she was sexually harassed by her supervisor (Leonard Weaver) over a 5-year interval beginning in 2004. What’s interesting about this case is that Debord made no direct claims against Weaver during this entire interval, but rather, on July 6, 2013, made several posts on Facebook in which she wrote that her “boss” (Weaver) needed to “keep his creepy hands to himself”, that she “loves it when my boss adds an extra $600 on my paycheck for hours I didn't even work”, and that her boss is a “snake” and an “all-around d-bag.” These posts were immediately investigated, and the investigation triggered a chain of events leading to Debord’s termination. Debord then lodged formal charges of sexual harassment and retaliation. The district court favored Mercy Health on both charges in a summary judgment, and the 10th Circuit affirmed.

The sequence of events were as follows. The human resources director (Eric Ammons) interviewed Debord on July 6, during which time Weaver interrupted the meeting to confront Debord. After Weaver left, Ammons queried Debord about the pay issue. Two days later, Ammons met with Debord to discuss the personal references to Weaver, during which time she denied making the posts. However, she ultimately fessed up after Ammons told her it would take a lot of money to identify the author. Debord told Ammons that Weaver touched her and other female employees “a lot” with his “cold hands.” When asked if Debord thought this was sexual harassment, her answer was no and that she just considered Weaver a pervert. Ammons then referred the case to the risk manager (Lana Brewster), who queried other female employees and corroborated the touching. Brewster asked Weaver if she wanted to file a sexual harassment complaint and Debord said no. Brewster then interviewed Weaver and he admitted to occasionally touching female employees to show how cold his hands are. Brewster told Weaver to cease the touching, but decided that Weaver had not violated company policy. On July 9 Debord told Brewster she did not lodge a sexual harassment claim, and on July 13, after an investigation of the pay claim, Brewster concluded that Debord’s overpayment claims were false. After conferring with the CEO, Ammons then terminated Debord for disruption, inappropriate behavior, and dishonesty. Debord then filed her sexual harassment and retaliation claims.

The sexual harassment claim was decided under the Ellerth/Faragher defense (based on the 1998 Supreme Court rulings in Burlington v. Ellerth (1998) [525 US 742] and Faragher v. Boca Raton [524 US 775]). There are two theories in these rulings upon which a sexual harassment claim can be based, and Debord lost on both of them.

The first theory, generally reserved for harassment by co-workers, is the reckless disregard standard (that the employer knew or should have known about the harassment but took no corrective action). The harassment claim failed here because no claims against Weaver were made by Debord or other females during the five years Debord claims she was harassed. Rather Mercy had no knowledge of the alleged events prior to July 6, 2013.

The second theory is that employers are vicariously liable for the actions of supervisors, but there is an affirmative defense in which they can escape liability if (a) there is a policy to prevent and immediately correct harassment and (b) the accuser fails to take reasonable care to use the policy. Clearly, Debord did not use the company’s policy, and the company took immediate action after learning of Debord’s accusations.

This brings us to the retaliation claim, the main issue being whether Ammon’s reasons for firing Debord (disruption, inappropriate behavior, and dishonesty) were a pretext for firing her because of her claims against Weaver. Or as stated by the court:

Ammons's stated reasons for terminating Debord were her inappropriate, disruptive behavior and her dishonesty. Debord does not dispute these charges. She admits posting inflammatory material about her supervisor on the internet, sending text messages to co-workers bad-mouthing her supervisor (unrelated to the alleged sexual harassment), discussing the overpay and harassment investigations with others, knowingly pocketing overpayment in 2007, and thrice lying about posting information on Facebook while at work. No reasonable jury could find these reasons "unconvincing." …... Thus, no reasonable jury could find pretext.

Critically, it should be noted that posts such as those made by Debord is protected activity under the National Labor Relations Act (NLRA). The reasons are contained in an alert posted on 11/22/10 in which the National Labor Relations Board (NLRB) challenged the termination of an employee for negative Facebook posts.

The moral of the story is that employees are protected for social media posts, but the company is free to investigate such posts and employees can be legally terminated if they are not careful regarding the truthfulness of serious allegations and the manner in which they respond to company investigations.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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