2 Replies to “Court OKs Using Employee’s Own Facebook Posts in Race-Bias Case”

  1. First, I’m not a lawyer.

    Next, I don’t think there’s a fit between “provocative clothing” and the case as it’s described. A key distinction (to me at least) is that there is a minimal connection between an employee’s attire and an openness to hostile/inappropriate remarks. An employee may dress a certain way for many reasons (e.g. believing it is fashionable, feeling it is comfortable). Whatever the reason, it would be quite easy to justify scurrilous remarks from business associates as unwelcome and hostile. In this case however an employee has participated in behavior/language in one context and claims it is offensive in another (which is not the case with provocative clothing). It may be possible in certain instances to make such a claim (“Language that I use off the job I find offensive/hostile in my work environment”) however it would seem the burden of proving bona fide harm rises (at least somewhat).

    Also I strongly suspect, or at least hope, that a totality of communications was considered here. That is, a single comment or post (e.g. “yo know yo ass is from da hood”) should not be a blanket defense of racially-hostile remarks. Multiple postings however suggest the employee actively participates such language. How is a court to know that employee is truly aggrieved as opposed to opportunistic?

    As noted repeatedly, social media is public (and it doesn’t matter what your settings are). Correspondingly, It’s difficult to make a claim (for purposes of seeking legal redress) that language an employee actively and publicly engages in should be actionable at in a work setting.

    Finally, I in no way endorse whatever conduct/remarks this employee was subjected to. While I can understand (at least potentially) why a court would rule the way it did, such treatment from co-workers/supervisors would be clear evidence of organizational pathology and be treated, internally, as such.

  2. First, I’m not a lawyer.

    Next, I don’t think there’s a fit between “provocative clothing” and the case as it’s described. A key distinction (to me at least) is that there is a minimal connection between an employee’s attire and an openness to hostile/inappropriate remarks. An employee may dress a certain way for many reasons (e.g. believing it is fashionable, feeling it is comfortable). Whatever the reason, it would be quite easy to justify scurrilous remarks from business associates as unwelcome and hostile. In this case however an employee has participated in behavior/language in one context and claims it is offensive in another (which is not the case with provocative clothing). It may be possible in certain instances to make such a claim (“Language that I use off the job I find offensive/hostile in my work environment”) however it would seem the burden of proving bona fide harm rises (at least somewhat).

    Also I strongly suspect, or at least hope, that a totality of communications was considered here. That is, a single comment or post (e.g. “yo know yo ass is from da hood”) should not be a blanket defense of racially-hostile remarks. Multiple postings however suggest the employee actively participates such language. How is a court to know that employee is truly aggrieved as opposed to opportunistic?

    As noted repeatedly, social media is public (and it doesn’t matter what your settings are). Correspondingly, It’s difficult to make a claim (for purposes of seeking legal redress) that language an employee actively and publicly engages in should be actionable at in a work setting.

    Finally, I in no way endorse whatever conduct/remarks this employee was subjected to. While I can understand (at least potentially) why a court would rule the way it did, such treatment from co-workers/supervisors would be clear evidence of organizational pathology and be treated, internally, as such.

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