Tuesday, November 7, 2017

Some lessons from the employee fired for middle-fingering Trump’s motorcade

Have your heard about Juli Briskman, the biker that flipped the finger to Trump’s passing motorcade?


Apparently, her employer, Akima, was less than amused when she used the above as her profile pic on her personal Facebook and Twitter accounts, and fired her for violating this social media policy:
Covered Social Media Activity that contains discriminatory, obscene malicious or threatening content, is knowingly false, create [sic] a hostile work environment, or similar inappropriate or unlawful conduct will not be tolerated and will be subject to discipline up to an [sic] including termination of employment.
I’ve written before about an employee’s responsibilities on social media.
Employees have not yet realized that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination. Until people fully understand that social media has erased the line between the personal and the professional, these issues will continue to arise. It is our job as employers to help educate our employees about living in this new online world, because it is clear that not all employees have yet learned this lesson.
This employer, however, may nevertheless have some issues with this termination.

According to The Washington Post, Briskman’s job responsibilities included monitoring Akima’s social-media presence. That monitoring uncovered this public Facebook comment by a senior director of the company, discussing the Black Lives Matter movement with a subordinate: “You’re a f------ Libtard a------.”

After Briskman flagged that director’s comment to management, the company allowed him to clean up the comment and keep his job.

Briskman was not so fortunate.

How do the two social media events compare?

  • Offensive
  • Identification of employer
  • Conversation with co-worker
  • Complaint by co-worker
  • Gender
That last bullet is going to buy this employer a sex discrimination lawsuit.

But here’s the rub. Akima’s termination of Briskman only amounts to unlawful sex discrimination if her gender was a motivating factor for the termination. If Akima did not consider Briskman’s gender (or other protected class), then it is free to treat these two at-will employees differently.

So, Akima, listen closely. Briskman’s gender had nothing to do with the termination. You fired her because you disagreed with her political expression (a perfectly lawful reason for a private sector termination).

*Caveat: if your internal documents suggest otherwise, all bets are off.