Facebook “Like” Leads to Employment Discrimination Lawsuit

Can “liking” a page or website lead to wrongful termination? Peter TerVeer claims this is exactly what happened to him and his story has recently been highlighted in the Washington Post. Essentially, TerVeer was employed as an auditor for the Library of Congress but after inadvertently coming out to his boss via facebook, he is jobless. TerVeer initially had a great relationship with his boss, who even tried to set him up with his daughter. After the daughter and TerVeer became Facebook friends, she noticed he “liked” a page that supported same-sex parents’ campaign against bullying. The daughter commented on the post, writing: “Don’t tell me you’re weird like that.” Days later, TerVeer’s supervisor sent him a harassing email mocking “diversity,” began lecturing him on the sin of homosexuality and proceeded to give him a negative performance review. TerVeer was later terminated. Earlier this month, VerTeer filed suit in federal court and brought claims of employment discrimination and retaliation.

Can “liking” a page or website lead to wrongful termination?  Peter TerVeer claims this is exactly what happened to him and his story has recently been highlighted in the Washington Post.  Essentially, TerVeer was employed as an auditor for the Library of Congress but after inadvertently coming out to his boss via facebook, he is jobless.  TerVeer initially had a great relationship with his boss, who even tried to set him up with his daughter.  After the daughter and TerVeer became Facebook friends, she noticed he “liked” a page that supported same-sex parents’ campaign against bullying.  The daughter commented on the post, writing: “Don’t tell me you’re weird like that.”  Days later, TerVeer’s supervisor sent him a harassing email mocking “diversity,” began lecturing him on the sin of homosexuality and proceeded to give him a negative performance review.  TerVeer was later terminated.  Earlier this month, VerTeer filed suit in federal court and brought claims of employment discrimination and retaliation. 

This case is interesting in that it concisely illustrates the potential dangers that Facebook and other social media websites have for both employees and employers.  As employment lawyers, we regularly see how the relationships, comments and photographs that are posted on social media sites have been steadily creeping into almost all of our employment law cases.  Both sides need to be mindful of their social media activity and remember that what may feel like a private space is almost anything but private (and is electronically memorialized). 

The interesting aspect of this case that employment lawyers are not talking about is the fact that TerVeer filed a claim for sex discrimination.  Why would he claim this is about his gender when the animus from his supervisor seems clearly directed at his sexual orientation?  Because federal law doesn’t explicitly protect employees from discrimination based on sexual orientation.  Surprising to many, but true.  Therefore, TerVeer, and others in his situation who file federal claims, must argue that his discriminatory employment treatment is unlawful sex-stereotyping under gender discrimination protected by Title VII.  The results of this kind of alternative pleading have been met with mixed success and we see an almost even split in our own Eight Circuit.  The takeaway from these split results is that plaintiffs are more likely to receive protection if the employment lawyer precisely tailors their discovery to accommodate the alternative pleading.