Rulings on social media, disabilities, gender

August 20, 2014       The NonProfit Times      

Americans have been a very litigious people for a very long time (and if you disagree, papers are on their way to you). The use of social media has exponentially increased both knowledge among employees and willingness to do more than gripe around the water cooler (if there is one) or at the unemployment office.

During the recent American Institute of CPAs (AICPA) Not-for-Profit-Industry Conference, Karl Ahlrichs of Gregory & Appel Insurance and Peter Petesch of Littler, reviewed several employer-employee disputes that reached the courts. They cautioned that there can be significant differences state-by-state regarding the issues that are raised, but there are cautionary tales in each one.

For example:

  • A Facebook “like” by an employee was ruled to be speech protected by the first amendment.
  • A confidentiality agreement in a settlement was ruled to have been breached when a teen-age child of one of the parties revealed it on social media.
  • Content on a restricted Facebook page was ruled to be protected under the Stored Communications Act (SCA).
  • A temporary disability or “sufficiently severe” temporary impairment can be covered by the Americans with Disabilities Act (ADA) or Equal Employment Opportunity Commission (EEOC).
  • An employer was ruled to bear the burden of proof that an employee’s physical presence was needed at the job.
  • According to the EEOC, the term “gender” encompasses not only a persona’s biological sex but also the social and cultural aspects associated with masculinity and femininity.