Articles Posted in Social Media and the Law

Even with President Obama’s recent endorsement of same-sex marriage, and multiple courts around the country finding the Defense of Marriage Act unconstitutional, many gay and lesbian workers still feel under fire. A recent article in the Los Angeles Times today demonstrates the discrimination many gay and lesbian workers continue to face in the workplace. The article profiled a high school water polo coach in Covina, California, just outside Los Angeles, who was fired for photos he had posted publicly on his social media networking accounts that showed him posing with drag queens at a party and jokingly playing with food while at a county fair with friends. It seems that after a person anonymously delivered printouts of the photos to administrators at the high school he worked at (and which his daughter also attends), he was fired. While terminating him, his supervisor, the principal of Covina’s Charter Oak High School, allegedly told him that employees at the high school were held to a “higher standard.” A higher standard indeed; after all, the photos had been posted years ago, before his employment at the school, and it took an anonymous tip for the school even to be aware of them. The fired coach immediately sued, alleging sexual orientation discrimination, and his case is now pending in the Los Angeles County Superior Court.

Even though gay rights and gay marriage are still hotly contested issues throughout the country, one thing should be clear to employers however: in California, sexual orientation discrimination is illegal and has been for years. Employers are not allowed to hold gay and lesbian workers to a “higher standard” than their other employees. While the federal government has never passed a law prohibiting discrimination by private employers based on sexual orientation, many states have. Currently 21 states and the District of Columbia prohibit sexual orientation discrimination, as do dozens of cities and counties around the country. California was one of the earliest states to prohibit discrimination based on sexual orientation, with the passage in 1992 of Labor Code Section 1102.1. Although the labor code was subsequently repealed, sexual orientation discrimination in the workplace continues to be prohibited under the California Fair Employment and Housing Act, Gov. Code §12940 et seq. Sexual orientation discrimination has also been prohibited by many cities and counties in California, including San Francisco.

What this means is that employment discrimination based on sexual orientation is just as illegal in California as discrimination based on sex, race, ethnic origin or religion. That means in a case like that of the water polo coach above, he only needs to show that he was treated differently than non-gay employees in the decision to terminate him. One way the coach can show that is by providing evidence that other employees who had acted similarly were not fired. For example, if other employees also had public photos on their social networking sites of them acting similarly, yet the school never terminated them, that would be strong evidence of illegal sexual orientation discrimination. Likewise, other evidence that gay or lesbian workers were disproportionately fired, like alleged in the article, would also help his case. Any evidence of harassment or stray comments indicating bias against gay or lesbian people would further strengthen his claim.

A report published yesterday in the Wall Street Journal highlights the problems that many employees may face due to their interaction with social media, such as Facebook, MySpace, Youtube or Twitter. According to the report, there has been a marked increase in the past year of cases involving employees fired for “liking” certain pages on Facebook, or making comments on Twitter or Youtube criticizing their co-workers, supervisors or company. Some employees have been fired for demonstrating support for certain political causes through comments or “likes”; others for “liking” a competitor’s page, or for writing comments complaining about work conditions or conflicts with co-workers on Twitter or Youtube.

For workers who have been reprimanded or fired due to their interaction with social media, there is often confusion about whether they face any legal protections for their speech. Many workers in fact may not even realize that their off-duty conduct can expose them to adverse employment action. The default rule for any employment relationship in the United States is that employment is at-will. That means that a worker can be fired for any reason for any time, unless the employer and employee have contracted otherwise. Therefore, unless an employer violates another specific constitutional or statutory restriction, there is little protection for employee speech whether on or off the job.

The First Amendment does protect some speech of federal, state or local government workers, but these protections do not extend to the vast majority of Americans who work in the private sector. For private sector employees, state constitutional law and statutes may provide some protection for their speech however. For example, California is among three other states that completely protect employees from adverse workplace action for their lawful off-duty conduct. This means that workers in California who “like” a certain Facebook page or even criticize their co-workers or employers outside of work are protected. But if such speech or conduct rises to the level of defamation or harassment or violates some other law it will not be protected. The speech must also take place outside of work hours and off work premises and should not use employer technology such as work-provided phones, computers or other equipment.

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