We’ve written extensively about the interplay between social media and litigation. This spring, the EEOC formed a Social Media Commission to study the use of social media in the workplace and the anti-discrimination laws the EEOC enforces.
The Commission convened a panel of expert who focused on three topics at a meeting at the EEOC’s headquarters in Washington, D.C.:
1. Use of social media in hiring;
2. Use of social media as a tool for employee engagement and its misuse as a tool for co-worker harassment; and
3. Social media as a source of discovery in employment litigation
As employment that litigator’s last topic is near and dear to our hearts and has been the subject of many of our prior blog posts. Despite the primacy of social media in our lives for at least the past several years, courts have only recently begun issuing opinions that substantively address the permissible scope of discovery of social media posts in employment discrimination cases. An Indiana federal court, in fact, recently commented on the remarkable paucity of published decisions providing guidance in the issue. EEOC v. Simply Storage Management, LLC,270 F.R.D> 430, 437 (S.D. Ind. 2010).
Those published cases that do exist generally serve as cautionary tales for employment discrimination plaintiffs. For example:
• In EEOC v. Simply Storage, and Indiana Federal Court ordered a plaintiff to produce social media posts and photos which the defendant (successfully) argues were relevant to the plaintiff’s “severe emotional distress” claim in a sexual harassment lawsuit (Simply Storage, 270 F.R.D. at 437);
• In Elam v. Pharmedium Healthcare Corp., a Mississippi federal court relied upon a plaintiff’s Facebook posts and photos—which revealed she attended a football game at her alma mater at the same time she claimed to be too emotionally distressed to be deposed—to justify the dismissal of her sexual harassment lawsuit; and
• In Williams v. Harrah’s Tunica Corp., a Tennessee court granted a defense verdict after the defendant’s impeached the plaintiff with Facebook posts in which she identified herself as “self-employed” and “retired”—this despite the fact that the plaintiff claimed to be actively seeking other employment.
While courts, government agencies (like the EEOC) and lawyers continue to grapple with the permissible scope of discovery of social media, for another group—litigants—the hand writing is already on the wall. What you post can and will be used against you in the court of law!