Employee Fired For Using Twitter to Complain About Sexual Jokes

A tech company, SendGrid, recently fired a female employee, Adria Richards, who used Twitter to complain about sexual jokes made by male employees from a different company.

During a conference in San Francisco, Richards tweeted that it was “Not cool” that the men were making inappropriate sexual jokes. She used her phone to take a picture of the men sitting behind her and then used Twitter to post the picture.

One of the men in the photo was terminated by his employer, San-Francisco based PlayHaven.

But Richards also found herself in the middle of a social media storm and was ultimately fired by her employer. SendGrid CEO Jim Franklin blogged that Richards was not fired because she reported offensive conduct, but because of how she reported it – using Twitter to post photographs and “publicly shaming” the offenders.

Franklin also went on to say that Richard’s actions caused division amongst the developer community that Richards serves as part of her job and that she can no longer be effective. 

But this is what often happens when an employee complains of inappropriate conduct: A complaint is made, which may create division at work and with customers; people may take sides. Regardless of such division and the ultimate outcome of any investigation, the employee is supposed to be protected from retaliation for complaining of harassment or discrimination.

This situation poses difficult questions: Can an employee complain in any manner he/she sees fit? Airing information across social media platforms and posting pictures of co-workers, customers or collaborators? 

The law provides strong protections for those who complain about harassment or discrimination. As demonstrated by recent decisions by the National Labor Relations Board, the law also protects employees who engage in concerted activity with other employees to improve their working conditions — which may include employees complaining to each other over social media.

The San Jose Mercury News explored the legal ramifications of the situation. Discussing the incident, Rob Pattinson, a Jackson Lewis attorney who represents employers, remarked, “It’s a tough one … The law is strong in protecting people who make complaints of harassment, or who participate in an investigation about complaints of harassment.”

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

See the HR Library for guidance on issues related to sexual harassment and to employees’ use of social media. Not an HRCalifornia subscriber? Start a free trial now!

Valentine’s Day: A Dozen Examples of Office Romance Gone Awry

Valentine’s Day brings to mind thoughts of a dozen roses, but this week we bring you a dozen examples of how office “sweethearts” can make morale wither in your workplace and cause liability to bloom.

The following examples come from companies located across the country:

1. Best Buy experienced fallout at the top level after allegations about the CEO’s affair with a subordinate came to light. An investigation into the interaction of Brian Dunn, the 59-year-old married Best Buy CEO, with a 29-year-old lower-level employee resulted in Dunn’s resignation. About one month later, one of Best Buy's founders, Richard Schulze, resigned after an internal audit alleged that he turned the other cheek to the conduct and failed to alert board members.
2. Former Hewlett-Packard CEO Mark Hurd resigned from HP in August 2010 following an investigation into his alleged misuse of company funds related to his dealings with an outside contractor (and former Playboy model) who worked for HP from 2007 to 2009.

To read the remaining 10 examples, sign in to HRCalifornia or start your HRCalifornia free trial now.

Supreme Court Hears Harassment Case

Today, the U.S. Supreme Court will hear an important case that is expected to determine who is a “supervisor” for purposes of employer liability in harassment cases.

The case, Vance v. Ball State University, is significant because, under previous decisions, an employer will be absolutely liable when a supervisor harasses a subordinate.

Maetta Vance, the employee, argued that she was repeatedly harassed by her supervisor, Saundra Davis, on the basis of her race. The lower court found there was not enough evidence that Davis was Vance’s supervisor and dismissed the case before trial.

Although Davis directed Vance’s daily activities, the lower court adopted a narrow reading of who constitutes a “supervisor” for liability purposes and refused to extend the definition to cover Davis.

The Supreme Court’s decision in Vance will either expand or limit the extent of employer liability in harassment cases. HRWatchdog and CalChamber will be closely following this case.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Reminder: 2013 is a mandatory sexual harassment prevention training year for most employers with 50 or more employees. CalChamber’s updated Sexual Harassment Prevention training course is now available, and the course is offered in English and Spanish.

Discrimination Charges, State by State

The federal Equal Employment Opportunity Commission (EEOC) released an online chart that allows you to view the number and types of workplace discrimination charges by state.  

The EEOC’s previous database allowed viewing only of the nationwide totals. The new chart contains statewide figures for fiscal years 2009-2011. 

California had 7,166 total charges in fiscal year 2011 which represents 7.2 percent of the nationwide total. Only Texas (10 percent) and Florida (8.1 percent) ranked higher in terms of percentage of nationwide claims. These figures are not surprising given the large populations of these states. 

By an overwhelming majority, retaliation is the number one EEOC charge filed in California, constituting 44.6 percent of all EEOC charges filed in the state. Retaliation charges were followed by race (33.1 percent), disability (29.4 percent) and age (25 percent). 

The state statistics mimic a nationwide trend. For two years in a row, retaliation has been the number one type of EEOC charge filed throughout the United States. 

These types of claims should be of real concern for employers. Employees have the right to complain of unlawful discriminatory or harassing treatment in the workplace. Retaliation takes many forms and includes adverse employment actions, such as demotions or terminations, following complaints of unlawful conduct. Subtle forms of retaliation, such as ostracism, may not be unlawful but can create morale problems and decreased productivity. 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

HRCalifornia subscribers can visit the HR Library’s Retaliation page and Discrimination page for more information about preventing discrimination and harassment in the workplace, including preventing claims of retaliation.

Or, consider attending CalChamber’s next live seminar, HR Boot Camp: Silicon Valley, where our employment law experts will cover a range of important HR topics.

AB 1825 Training Year Deadline Approaches

2011 is a sexual harassment prevention training year for many California employers with 50 or more employees. If this applies to you, there’s only a short time left to meet the year-end deadline for mandatory AB 1825 supervisor training.

In State Department of Health Services v. Superior Court (McGinnis) (2003), a company avoided legal penalties by demonstrating it took all reasonable steps to prevent sexual harassment — including training for employees. That’s tangible proof of the value of harassment prevention training.

Avoid situations and a work environment that put you at risk by educating yourself and employees. For more details on AB 1825, download CalChamber's free white paper.

When you order your online harassment prevention training  from CalChamber before December 31, you’ll save 30 percent. (Be sure to mention priority code HTL3.) That’s only $29.40 per learner for the AB 1825 supervisor course and $16.80 for the employee course. CalChamber Preferred and Executive Members save even more with their 20 percent discount.