Your employees view pornography. Well, some of them do.
I know this may be a shock to some. And if you are one of those people, and you run a business in one of the mid-Atlantic states, give me a call. We should talk sometime. Then, I’ll hit you over the head with a proverbial tack-hammer.
Until then, over the next two days, I’ll address two recent examples of where nekkid pix caused employees to lose lawsuits against their former employers. The first case — an age discrimination matter — follows after the jump
The Case of the Older Men, the Younger Men, and the Naughty Emails
Phil Miles at Lawffice Space writes here in his weekly edition of Case of the Week about a recent decision from the Third Circuit Court of Appeals — that’s my hood (PA, NJ, DE, and USVI). This case is about older employees who claim age discrimination, but admit sharing porn at work with one another.
Guh?!?
Well, ya see, these plaintiffs claimed that younger employees shared porn at work too and the company didn’t discipline the young bucks as much as the old heads. Ultimately, however, to prevail on a disparate treatment claim for age discrimination, it is *** legal jargon alert *** axiomatic that a plaintiff must demonstrate that his employer treated younger, “similarly situated” employees better. For “similarly situated”, just think apples to apples.
*** Side note: I’ve noticed that the media tends to quote pleadings I file and articles I publish more frequently when I throw in an “axiomatic” or two. Try it sometime. ***
But back to the fellas and their tasteless emails…As Phil points out, the Court found that the plaintiffs failed to show that there were any similar bad apples:
[T]he persons identified by Appellants are not similarly situated. Carl Dorsch is not similarly situated to Appellants because, although he accessed pornographic websites on his work computer, he was a non-supervisory employee and he did not send the content to anyone else. Likewise, Robert Smith is not similarly situated to Appellants because there is no evidence that Smith actually sent sexually explicit emails . . . . Conrad is not similarly situated to Appellants because he sent only one email and did so from his personal computer. In contrast, Appellants exchanged sexually explicit emails on nearly a daily basis.
Halftime Score: Porno 1 – Plaintiff-Employees 0
Tomorrow, I continue this fascinating two-part series with the Case of the Hospice Nurse on FMLA and Her Boyfriend’s Manhood. Ah! The life of an employment lawyer.
Smell that? It’s a Pulitzer. Or not. Either way, if you like this blog, please take a few seconds and give me your vote.