How Can Social Media Impact Retaliation and Discrimination Claims?

Earlier this year, Adrian Scott Duane found himself fired shortly after posting a negative comment about his employer, IXL Learning, Inc. on job recruiting and rating site, The offending statement:

“If you’re not a family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball – then you’re likely to find yourself on the outside – Most management do not know what the word ‘discrimination’ means, nor do they seem to think it matters.”

Duane had posted the comment in response to an ongoing dispute he had with his direct supervisor regarding his need for flexible work hours after a gender reassignment surgery. And in a later meeting, Duane was fired from the company, which cited the offending message as a motivating factor.

Feeling that his firing was unmerited, both the National Labor Relations Board (NLRB) and the U.S. Equal Employment Opportunity Commission (EEOC) filed lawsuits against the employer. And while the NLRB case has been dismissed, the decision for the EEOC case is pending.

Are your anti-harassment efforts sufficient to protect your business? Read: Does Your Harassment Training Cover These 5 Areas?

Social Media and Discrimination

Firings related to an employee’s social media posts are not all that uncommon. In fact, one 2016 survey conducted by CareerBuilder found that 26 percent of responding businesses had either reprimanded or terminated an employee based on “disturbing” information that had been posted to social media.

In the Duane case, however, the federal agencies were more concerned about the content of the offending post, specifically that it called out IXL Learning for discrimination. And they viewed Duane’s subsequent firing as workplace retaliation.

To quote Ami Sanghvi, the EEOC attorney involved in the case: “While the platforms for employees to speak out against discrimination are evolving with technology, the laws against retaliation remain constant…[and t]he main reason to litigate is to send a strong message that we will protect workers that engage in activities, not just through traditional avenues.”

Beyond current employees, social media also poses new challenges for hiring candidates as well. According to the already mentioned CareerBuilder survey, 60 percent of responding business stated that they peruse common social media platforms, such as Facebook or Twitter, when evaluating potential hiring candidates.

And while these tools offer the ability for recruiters to gain a better feel for the potential hire beyond their resume and cover letter, the wealth of information — particularly personal, non-job-related information — on these sites comes with a high level of risk.

Currently, there are several federal statutes that preclude considering a wide range of factors — from race to age to military service — in hiring or employment decisions. These regulations include the:

In addition, several states place additional limitations on what data can be used to influence hiring decisions. For example, New York state law protects job candidates from discrimination based on smoking habits, off-duty political work, and other recreational activities (including such “hobbies” as blogging).

What Should Your Company Do?

When evaluating hiring criteria, consistency and objectivity are paramount to protecting your business. If your firm does use social media or other online sites when evaluating candidates, consider having someone not involved with the actual hiring decision perform the research, reporting only job-related data via a standardized form. Take further measures to ensure that the considered information is, in fact, accurate.

It would also be wise to reevaluate company policy regarding what details can and cannot be used to evaluate potential employees as well as employee performance, reaching out to legal counsel or outside experts where appropriate. These defined guidelines should accompany ongoing, targeted training for anyone involved in the hiring or firing process, educating them on associated risks and proper documentation processes.

The Next Step

No matter the decision in EEOC v. IXL Learning, similar cases surrounding social media and workplace discrimination are inevitable. Your business should tread carefully when dealing with this gray area, particularly with the potential for new regulations and case law to shift the legal landscape. To further complicate matters, more than half of state legislatures have passed local laws regulating the privacy of social media accounts with regard to employment.

To better equip managers and decision makers at your business on how to navigate the perils of social media in the modern workplace, check out our harassment and diversity courses. We’d love to show you what we can offer.