Sep 30, 2015

By Eric B. Meyer

An employee who was allegedly fired for violating a company’s social media policy is going to have his day in court. And on this blog.

Chris Redford, a white male, worked for a Louisiana TV news station. The station has a social media policy prohibiting employees from responding to viewer complaints.

Well sure enough, Mr. Redford wrote a comment on his personal Facebook page in which he addressed a comment from a reader on story that ran on the TV station. The news station then fired Mr. Redford.

In a vacuum, there would seem to be nothing wrong with that. Except, I don’t blog about situations where employment decisions are made in a vacuum. Here, Mr. Redford argued that other African-American females who engaged in similar behavior were either offered second chances or not disciplined altogether.

A good old case of disparate treatment

To prove discrimination, among other things, a plaintiff must demonstrate that the employer treated other similarly-situated employees outside of the plaintiff’s protected class more favorably under similar circumstances (disparate treatment). In moving for summary judgment, the employer argued that neither of the comparators to whom Mr. Redford compared himself were similarly-situated.

As the court noted in its opinion (in Redford v. KTBS), similarly-situated doesn’t mean “identical.” Rather, close enough will suffice. And, the two women who apparently got a second chance after violating the company’s social media policy, were close enough:

In the present case, it appears clear from the record that Lee and Machi had the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories to Redford. The critical question then rests on whether Redford’s behavior is nearly identical to that of Lee and Machi. …

Nearly identical situations between comparators can exist when the offenses for which discipline was meted out were of comparable seriousness. This Court believes that requiring Redford, Lee, and Machi to have used the same language in their respective Facebook posts in order for their behavior to be “nearly identical” is a higher burden than the standard imposes. The Court finds that Redford has presented sufficient evidence to create a genuine dispute of fact as to whether his behavior was of “comparable seriousness” and as such, whether the circumstances are nearly identical.”

Who benefits from uneven policy enforcement?

Hey, I’m a lawyer. And a super-cool blogger. (But, then again, aren’t we all? Actually, no. Just me.) But, I’m also your friend.

Whatever policies you employ — social media or otherwise — make sure that you (and by you, I mean HR, managers, or anyone in a position to enforce them) know what those policies say, and apply those policies evenly.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.