In any sexual harassment litigation, the plaintiff should expect some level of scrutiny from the court, and particularly from the defense.New York employment lawyers know that this sometimes unfortunately means delving into matters of a personal nature. It’s something for which we try to steel our clients, and the bottom line is this: Nothing in your history creates a valid reason why you should have to suffer sexual harassment. It’s illegal. Period.
However, a judge in Colorado recently made a troubling ruling in preparation for a class action trial of a sexual harassment case there involving some 20 women who were reportedly targeted by a supervisor of a food distribution chain.
The November ruling in the EEOC v. The Original Honeybaked Ham Company of Georgia, Inc. made news after the U.S. Magistrate Judge in the U.S. District Court of Colorado granted a defense motion to compel the plaintiffs to turn over their Facebook passwords. This was part of an order compelling them to turn over their full, unredacted social media content, including text messages and e-mails.
While the realm of social media is relatively new territory as far as law is concerned, one doesn’t need to be a lawyer to understand that this is a breach of privacy.
The defendant in this case claims that these communications – some of them private – contain information about the lawsuit, the defendant and further go toward painting a picture of the plaintiffs that is unfavorable with regard to the litigation. For example, one of the complaints from an employee was that the supervisor had referred to her by a sexually derogatory expletive. However, in a photograph posted to her social media site, she appeared with a t-shirt with that same term written on the front. The defense claims this proves the plaintiff couldn’t have been categorically offended.
Of course, it’s a weak argument, but one the judge determined they were entitled to make.
Other elements of the electronic communication that the defense claims are relevant include:
- Sexually suggestive commentary traded among members of the class;
- The “self-described sexual aggressiveness” of one class member;
- Information regarding their post-termination financial condition and employment opportunities.
But again, even if all these things are true, none of it makes it acceptable to act as the supervisor in this case allegedly did.
According to court records, the women allege that the supervisor made sexually suggestive comments to them, groped them and demanded sexual favors of them. Some complained to management. Those who took their complaints up the chain of command were subsequently fired from their jobs, despite previously positive performance reviews.
The judge has said that the information obtained from the social media sites won’t immediately be handed over to the defense. A “special master” will be designated to oversee the collection of information. From there, the judge will review the content and determine whether the information obtained is relevant and can be entered into evidence.
Not only does this raise serious privacy concerns for the plaintiffs, but it is also troubling from the perspective of those who were communicating with them, sometimes privately, who may not be party to the case and who may have sent messages with the expectation that no one else would read them.
While we disagree with the ruling, one thing we hope potential clients take from this is to be mindful of the material you are posting to social media sites and communicating electronically. Anytime you create a trail of such communication, there is a risk it may be used in court.
The Law Offices of Ira S. Newman provides employment litigation representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.
Judge orders sex harassment plaintiffs to produce Facebook passwords, Nov. 19, 2012, By Timothy B. Lee, ARS Technica
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