Prior to the advent of social media and especially the #MeToo movement, employers were generally comfortable drawing a bright line between what employees did on their own time and workplace misconduct. Those bygone times, however, have been replaced by a modern era wherein employers are forced to apply employment laws created before the personal computer to their workforce in an increasingly virtual world. In this installment of #No Filter, we will continue to explore sample cases involving an employer’s decision to take disciplinary action following an objectionable social media post.
U.S. Equal Employment Opportunity Commission v. IXL Learning Inc., Case No. 3:17-cv-02979, in the U.S. District Court for the Northern District of California.
In October 2018, the Equal Employment Opportunity Commission asked a federal jury in San Francisco to award damages to Adrian Scott Duane, a transgender man who was fired for posting an anonymous two-star review of his employer on Glassdoor. In the anonymous posting, Duane alleged any employee who isn’t “a family-oriented white or Asian straight or mainstream gay person with 1.7 kids” would receive worse “treatment in the workplace,” including fewer flexible working hours and promotions. At the time of the post, Duane was working from home following his gender reassignment surgery and objected to the strict work schedule given to him during his remote assignment. Upon learning of the post, the employer’s CEO confronted Duane and asked him if he was the author of the Glassdoor post. Duane admitted that he was the author and was fired for attempting to interfere with the employer’s recruiting efforts.
After a trial on the merits, on October 29, 2018, the San Francisco federal jury unanimously found Duane’s employer did not commit...
