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Are Complaints Made on Facebook Enough to Give an Employer Notice of Harassment?


That is the issue being decided by the U.S. Supreme Court in the next few days. This decision will no doubt have an impact on employment discrimination and retaliation laws in our country. The issue is whether protected speech, upon which a retaliation claim is based, can be expressed to someone other than management, and still be protected.

What is required to prove retaliation?

Under the law, retaliation means taking an "adverse employment action" against an employee for "engaging in legally protected activity." Under federal law, protected activity generally falls into one of two categories: participation or opposition. In other words, you either oppose a practice believed to be unlawful discrimination or you participate in some type of employment discrimination proceeding. It is important to note that, even if you oppose some aspect of your employer's conduct that ultimately turns out to be lawful, if you were reasonable in believing the conduct was discriminatory and made the complaint in good faith, you are still protected.

There are also various types of participation that are protected. For example, filing a charge of employment discrimination (or EEOC charge), cooperating with an internal investigation or participating as a witness in an EEO investigation or lawsuit (yours or someone else's) are all protected. Again, even if it is later determined that the claim was invalid, your participation is still protected.

The Issue in Debord v. Mercy Health System of Kansas, Inc.

In Debord, the plaintiff wrote a Facebook post alleging that her supervisor was sexually harassing her. Once the Facebook post was discovered by the plaintiff's employer, an investigation was conducted into her allegations. However, at first, the plaintiff denied writing the Facebook post. She also discussed the investigation with another co-worker in violation of her employer's instructions to keep it confidential. Although she later admitted to writing the Facebook post, she was ultimately terminated for her dishonesty and failure to cooperate in the investigation.

The plaintiff later filed this lawsuit alleging sexual harassment and retaliation in violation of Title VII. The district court granted summary judgment in favor of the employer on all claims, and Debord appealed the decision to the Tenth Circuit Court of Appeals.

The Appellate Court's decision

In sexual harassment cases, the employer has available to it the defense that, when the employer became aware of the harassment, the complaint or accusations were investigated and appropriate action was taken. The employee's actions are crucial in surviving this defense. The employee must prove that management was made aware of the problem by clear complaints and that the employer failed to investigate and take action where necessary.

In Debord, the Tenth Circuit found that her Facebook posts did not constitute proper notice to her employer of the alleged sexual harassment. The court also found that her dishonesty when questioned about writing the post and refusal to assist in a workplace investigation were legitimate reasons for her termination. This means that the employer, Mercy, could not be directly liable for sexual harassment because there was no evidence Mercy had actual or constructive notice of the alleged harassment. For example, the evidence showed that the plaintiff admitted none of the alleged harassment occurred in front of Mercy management and she never actually told Mercy management about the harassment.

The U.S. Supreme Court will review this case in the coming days. What can employees take from this case? Your employer will likely not be presumed to have notice of your complaints of workplace harassment if your only complaints were made through social media.

If you have believe you have been subjected to sexual harassment or discrimination in the workplace, or if you have questions regarding your employment rights, please contact our firm either online or by calling us at (205) 265-1880.

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