Now that Facebook or Twitter has become such an integral part of our lives, we have begun to see more and more cases of employees getting in trouble at work for statements made on social media. Our prior discussion of Grasiosi v. City of Greenville demonstrated how complaining about your employer on Facebook could lead to termination. However, employees are not the only ones at risk for saying the wrong thing on social media. Employers can also face legal consequences when they make inappropriate statements on Facebook or Twitter.
Coyote Ugly's blog post puts employer in hot water
An employee of the famous Coyote Ugly Saloons filed a lawsuit against her employer under the Fair Labor Standards Act. While litigation was pending, the president of the company posted this particularly offensive blog about the employee:
This particular case will end up p*ssing me off cause it is coming from someone we terminated for theft. I have to believe in my heart that somewhere down the road, bad people end up facing bad circumstances! I have been reading the basics of Buddhism and am going to a class on Monday. The Buddhist way would be to find beauty in the situation and release anger knowing that peace will come. Obviously, I am still a very new Buddhist cause my thoughts are f***k that b*tch.
The employee was reinstated by the time the post was published. Later, a supervisor was alleged to have published the following post on Facebook about a different employee, "Dear God, please don't let me kill the girl that is suing me . . . that is all . . . ." These misguided comments gave the offended employees the opportunity to add retaliation claims to their already pending litigation.
Do these comments constitute retaliation?
While these comments alone do not constitute retaliation, they can very easily be evidence of retaliatory animus. The legal definition of retaliation, in the employment context, is taking an "adverse employment action" against an employee for "engaging in a legally protected activity." An adverse employment action can include demotion, discipline, termination, reduction in salary, or changes in job assignments or shift schedules. Protected activity includes either opposing a practice believed to be unlawful discrimination or participating in some type of employment discrimination proceeding. But, retaliatory animus must also be shown.
Establishing "but-for" causation in retaliation cases
An essential element required to prove retaliation is referred to as "but-for" causation. This means that you must prove the adverse employment action would not have occurred "but-for" the retaliatory motive. Put another way, the action must have been taken "because of" retaliation. A mixed-motive theory is not sufficient. In basic discrimination claims under Title VII, it is enough to show that discrimination was at least one of the motives behind the challenged employment action, even if there was another motive was at play. The same is not true for retaliation cases.
If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact Wrady Michel & King , either online or by calling us at (205) 265-1880.