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