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Facebook Posts Do Not Constitute Notice to Employer of Sexual Harassment in the Workplace

On November 26, 2013, the United States Tenth Circuit Court of Appeals decided that Facebook posts do not constitute proper notice to employer of sexual harassment, affirming the US District Court for the District of Kansas’s grant of summary judgment in favour of the employer on plaintiff’s Title VII sexual harassment and retaliation claims.

In this case, the Plaintiff filed a lawsuit against her employer, Defendant Mercy Health Services of Kansas, for sexual harassment and retaliation in violation of Title VII. The Plaintiff claimed that Defendant knew or should have known that her supervisor created a hostile workplace through unwanted touching and offensive sexual remarks. Plaintiff also argues that Defendant did not do enough to prevent sexual harassment in the workplace, and that, when she finally reported the harassment, Defendant retaliated against her by firing her.

The Court of Appeals sided with the District Court in deciding that this case did not present any dispute of material facts. The Court of Appeals affirmed the summary judgment in favour of the Defendant arguing that the plaintiff did not provide enough evidence, showing that there is any triable issue of fact.

The Plaintiff did not provide any reasonable explanation as to why she waited five years before reporting the harassment she was subjected to. Besides, the Court of Appeals decided that there is no genuine dispute about whether Defendant honestly held legitimate reasons for terminating Debord based on its conclusion that she was dishonest and disruptive during Defendant’s investigation of allegations about her supervisor’s conduct and claims she improperly received extra pay. In fact, the Court stated that the Defendant had no actual (because harassment never occurred in front of Defendant’s management and Plaintiff never told Defendant’s management) or constructive (because the record only showed three statements about the supervisor’s conduct and none of them were pervasive enough) notice of the alleged harassment and as a consequence could not be directly liable for sexual harassment. Besides, the Court also noted that Defendant could not be held vicariously liable because Defendant adopted anti-harassment policies and distributed them to employees via employees’ handbooks. Moreover, Defendant took sufficient corrective measures by conducting an immediate investigation into Plaintiff’s allegations posted on Facebook. Plaintiff denied Defendant’s offer to make a complaint of harassment and Plaintiff delayed reporting the alleged harassment for five years, which was deemed unjustified and unreasonable by the Court. Plaintiff’s posts on Facebook were not adequate notice under Defendant’s anti-harassment policies that she was being sexually harassed by her supervisor.

This case serves as a reminder that employees cannot rely on Facebook to substantiate their claims, even more so when the employer has anti-harassment policies in place.

If you are an employee and you believe you have been discriminated against or you have been the victim of harassment, please contact the Harman Firm, LLP.

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