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Aug 4, 2014

By Eric B. Meyer

On the clock or off, when employees do dumb stuff on Facebook, it could cost them their jobs. And, apparently, their discrimination claims against their former employer, too.

Yep, another employee screwed up online. Go figure.

In Brown v. Tyson Foods, Inc., the plaintiff was suspended after her employer learned that a video on Facebook showed her “shaking her tail” and placing money in the shirt of a male co-worker who was performing an “exotic” dance at work.

Fired for Facebook comment, suing for discrimination

For that, Tyson fired the plaintiff, but then converted her termination into a suspension. Upon her return, the plaintiff responded with this spew:

@ This Bitch name Candie Im not your Murthafuckin friend an I think I said sumthing to an at your Ass earlier. About looking on my page u dnt no anthing about me nor my husband. An first of ALL I can put whatever I want on my Damn page if u dnt like it when Delete your ass from my page. An first of All your Bitch ass keep looking in my Damn mouth every Lyme Im talking if Im not talking to you what the fuck u getting a mouth full of nothing. Just to let u know hater are my motivate. So since you think I talk to guys an calling it adultery. Bitch u dnt know anything about me but my first Name So u need to Think B4 u Speak. An go find your Babies Daddy an stop-fuckin your friend Man. With your bad bult ass with your back pocket touchin your knees as get u a Booty Pad So your pants stop falling. Now go tell that Bitch, So u will be Delte. An stop having one night stand with all your riders Suckin they Dick. U Brought this on your own.”

Well, as it turns out, the plaintiff gets a pass, because her daughter copped to the post on her mom’s Facebook account. Unfortunately for the plaintiff, however, Tyson Foods was not aware of the mother-daughter switcheroo and fired the plaintiff after reading this post about Candie, one of the plaintiff’s co-workers.

So the plaintiff sued for race discrimination. And she lost.

Remember the lede: Inappropriate Facebook videos, comments doom an employee’s discrimination claims

Yeah, I know. I’ll give you a sec to recover from the shock.

What the court said

Here’s why, from the ruling by the U.S. District Court for the Western District of Arkansas, Texarkana Division:

First, it does not appear that Plaintiff was meeting Tyson’s legitimate job expectations. The grounds for her first suspension for dancing in September 2012 are not in dispute. Her suspension stemming from the Facebook posts in November 2012 also appears to have been warranted. Based on the information before Tyson at the time, the posts were made from Plaintiff’s account and appeared to have been written by Plaintiff. The posts were extremely graphic and derogatory, and Plaintiff herself admitted that a suspension would be justified if Tyson believed she had authored the post. Even assuming that it was actually Plaintiff’s daughter who made the Facebook posts, the Court finds that Tyson’s decisions were justified on the facts before them at the time. By all appearances, Plaintiff was directing threatening and derogatory messages to her co-workers. This type of behavior certainly falls short of Tyson’s legitimate job expectations.”

Plaintiff also failed to show how Tyson had treated a similarly situated employee outside of her protected class any better.

What employer should remember

There are two (2) takeaways from this case:

  1. No matter the manner — whether face-to-face, on the phone, email, Facebook, whatever — do not tolerate co-worker harassment/intimidation. Instead, address it in a way that’s reasonably targeted to ending it.
  2. Even if Facebook speech is outside of work hours, when a co-worker who is the target of the post brings it to your attention, it is then your problem with which to deal. Social media is always on. It can be accessed at anytime. So, when accessed in your workplace, it become part of the workplace. So, if you become aware of it, don’t ignore it. Instead, see, No. 1 above.

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