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Tenth Circuit Says Facebook Posting Not Effective Sexual Harassment Complaint

    Client Alerts
  • January 03, 2014

Title VII prohibits retaliation against an employee who complains to their employer about workplace sexual harassment. A recent decision from the Tenth Circuit Court of Appeals deals with the question of whether social media postings can be considered an effective complaint to the employer.
In Debord v. Mercy Health System of Kans., the plaintiff alleged that her supervisor had subjected her to a long-standing pattern of sexually oriented comments and touching. She admitted that she had never complained about the conduct using the hospital’s harassment procedures, but eventually she posted claims of unwanted touching by the supervisor on her Facebook page, along with other claims regarding allegedly improper payroll practices. The supervisor brought the postings to the hospital’s attention, and it initiated a harassment investigation. The investigation found no evidence of harassment, but the employer terminated the plaintiff for dishonesty with regard to the payroll claims. She sued, claiming sexual harassment and retaliation.
The Tenth Circuit affirmed dismissal of the claims on summary judgment. In terms of the retaliation claim, the plaintiff argued that she met her burden of complaining about the supervisor’s alleged behavior through her Facebook post. She cited the Supreme Court’s Kasten decision, which protects both oral and written harassment complaints. The Tenth Circuit rejected this argument, noting that the employer had a flexible harassment reporting system, and that the Facebook posting did not provide any effective notice to the employer.
The court noted that once the employer learned of the Facebook postings, it investigated the allegations regardless of their source. However, for purposes of a retaliation claim under Title VII, the court concluded that the plaintiff never engaged in protected conduct by making a direct complaint to her employer regarding sexual harassment. Employers investigating employee harassment complaints should carefully document the source and date of their initial knowledge of the alleged harassing behavior.