Is this post safe for work? Yes, it is. Did I write it in Incognito mode, just in case? Yes, I did.
A recent California decision offers employers a good reminder about the importance of applying work rules and policies evenly to avoid potential discrimination claims.
The case involves a flight attendant for an airline who was investigated and later fired for having an Instagram account featuring pictures of herself in uniform and wearing a bikini, with a link to a subscription-based account called Only Fans, which she advertised as providing “[e]xclusive private content you won’t see anywh[ere else].”
The employer maintained a social media policy and a code of ethics which, when read together, prohibited employees from posting racy photographs in uniform on sites like Instagram. That’s reasonable enough.
However, the plaintiff claimed that the airline did not enforce its policies consistently for male and female employees.
For example, she presented evidence that a male flight attendant had an Instagram account showing pictures of himself almost nude and in uniform with a link to another account called a “Drag Account.” That account listed his email address for “Bookings” and Venmo account name. He only received a Performance Warning Level 4.
Another male flight attendant had an Instagram account featuring “suggestive pictures, videos, and captions” alongside pictures of himself in his uniform. He received a Performance Warning Level 4, too. Finally, there’s “AviatorDave,” a “brand ambassador” with an Instagram account that included pictures of himself in uniform, in swimwear, shirtless in open bathrobes, and in bed. AviatorDave’s Instagram account included a Linktree link to “Aviator Dave TV,” where subscribers could access information about flying. He didn’t get fired either.
The airline contended that the three male employees with the social media accounts were “not proper comparators” because they held different positions, had different conduct, and had different supervisors.
But here’s the thing about these disparate treatment cases. A plaintiff doesn’t need evidence of an identical comparator; a similar one “in all material respects” will suffice.
How do courts know when comparators are similar in all material respects? Often, judges won’t wade into those waters; instead, they defer to juries to explore the context and facts of the case. Translation: these can be challenging cases to defend with lots of financial exposure.
So before you terminate employees for Only Fans accounts or any policy violation, make sure that you’re following the policy consistently. Otherwise, you may learn an expensive lesson.