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ICYMI: Our Social Media Posts This Week – Jan. 21 - 27, 2018

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 1/21/18 we talked about the legal differences between sexual harassment and workplace bullying. So important for employees and employers. Bullying by itself may or may not be illegal; that varies among the states. But it is when bullying is because of a protected characteristic that it may cross the line and become illegal sexual harassment or discrimination or create a hostile work environment. The post gives some examples.

TAKEAWAY: Even if legal, bullying has no place at work; employers should take steps to ensure that it never rises to the level of sexual harassment.

The post on Monday 1/22/18 told us how Nicole Bass was slut-shamed by WWE during her sexual harassment lawsuit. Bass is a bodybuilder turned wrestler who died almost a year ago. Soon after her employment with WWE ended, she filed a sexual harassment suit – some of the sordid details are in the post. The WWE successfully defended, but it is the defense that is a teaching moment in today's era of #MeToo. The WWE slut-shamed Bass and more – see the post. Even the lawyers got into the act with procedural tactics – again, see the post.

TAKEAWAY: Slut-shaming and similar defensive moves are just some of the things that work to keep victims of harassment and discrimination quiet – but can also backfire against the employer. Be careful before playing this card.

In the post on Tuesday 1/23/18 we talked about the conundrum of social media at the condo or homeowners' association: who has what rights? We also suggested that you contact us due to our experience in this area. Socmed is a good (and inexpensive!) avenue for the Association to communicate with its members. But it is also fraught with danger if comments or posting is allowed by those same members. There are constitutional concerns as noted in the post. Further, pictures can be problematic; also see the post.

TAKEAWAY: There are ways to handle social media issues before they happen and in a legal way – contact an attorney familiar with the area to assist you.

The post on Wednesday 1/24/18 was about harassment by emojis. You know what an emoji is, right? Those little symbols that appear everywhere: emails, text messages, and more. There is probably more than one emoji for every possible situation – which could spell problems in the workplace. An emoji might be appropriate in the personal sphere, but not at work. All the ways verbal (or other written) expression can be considered harassment apply to emojis too. The post gives some examples. Further, as in the post, emojis can be evidence of a hostile work environment. Yep.  

TAKEAWAY: Employers' policies should be revised or updated to include emojis, and then train employees on the proper (and improper) use of emojis in the workplace.

In the post on Thursday 1/25/18 we saw that an HIV-positive gay man settled a $20M discrimination suit with a major advertising agency. Matthew Christiansen filed suit under Title VII anonymously in 2015; after the employer threatened to fire him and sue him for libel, he went public. Some of the allegations in his suit are in the post; they are somewhat graphic. The trial court dismissed the suit but it was reinstated on appeal. The post even notes some of the many people who filed amicus briefs in support of Christiansen. We won't know how the suit would have turned out now due to the settlement.

TAKEAWAY: Train managers how to act (and not act) – if they take adverse action (which is broad) against someone based on a protected characteristic, the employer can be liable.

The post on Friday 1/26/18 noted James Damore is suing Google for discriminating against white males. Unless you've had your head in the san, you've probably already heard about this. The state-court suit actually alleges bias against conservative viewpoints, men and Caucasians. Damore is the former Google engineer who wrote an internal memo last year about the alleged biological reasons women aren't engineers and was fired. Whether or not the suit will be certified as a class action remains a question. Also, it is interesting since women filed suit in August claiming pay discrimination. See the post on that and more.

TAKEAWAY: Due to the conflict between the EEOC and DOJ on what Title VII and the prohibition against sex discrimination covers, it is a good idea to advance state law claims if available. Of course, the best thing is for there to be no illegal harassment from the start.

Finally, in the post yesterday 1/27/18 we saw that a Japanese steakhouse settles an EEOC pregnancy discrimination suit. The suit alleged that the person worked as a server and bartender at the Japanese restaurant and was fired due to pregnancy. The post gives a bit of procedural history and notes the settlement terms.  

TAKEAWAY: If there is no illegal discrimination or harassment, there will be no need to settle; otherwise, just get out the pen and checkbook.

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