The National Law Forum

The Blog of the The National Law Review

Is Inconsistent Application Of Social Media Policy Evidence Of Discrimination?

A District Court in Louisiana concluded recently that a television station’s inconsistent application of its social media policy entitled a terminated employee to defeat summary judgment regarding his discrimination claim.

The television station in question, KTBS, had implemented a social media policy that included a prohibition on employees responding to viewer complaints. The station also held a mandatory meeting at which the policy was discussed. Shortly thereafter, Chris Redford, a male on-air reporter, wrote a negative post on his Facebook page about a viewer who had commented on one of his stories. Upon being notified of Redford’s post, KTBS fired Redford for violation the station’s social media policy.

Redford sued KTBS, alleging, among other things, gender discrimination because the station had not terminated a female on-air personality (Sarah Machi), who also had written a negative post on her Facebook page in response to a viewer’s comment.

KTBS moved for summary judgment, including as to Redford’s gender discrimination claim. In support of its motion, the station admitted that it did not consider an employee’s negative comments on his or her “private Facebook page” regarding a viewer to violate its social media policy. Although both Redford and Machi had posted negative comments on their personal Facebook pages, the station argued that Machi’s situation was different because her Facebook page was protected by privacy settings that only permitted it to be viewed by people she had “friended” whereas Redford’s Facebook page was public and he used it to promoted his work at KTBS. The court was not persuaded by the station’s attempted distinction. Rather, the court determined that the station’s inconsistent application of its social media policy to Redford’s and Machi’s same conduct—i.e., Redford was fired whereas Machi was not disciplined at all—created a triable issue of fact. Therefore, it denied the station’s motion as to Redford’s gender discrimination claim.

The important takeaway for employers, as we previously have discussed in various posts, is the critical importance of consistently applying its social media policies. It is not sufficient merely to have a social media policy. It is just as important to apply it in a consistent manner to avoid potential discrimination claims.

© 2010-2016 Allen Matkins Leck Gamble Mallory & Natsis LLP

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