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A former lingerie model turned high school guidance
counselor has sued the New York City Department of Education
("DOE") for discrimination and wrongful termination after
being fired when Internet photos surfaced of the scantily-clad
guidance counsel from years ago. Stripped down to its
bare essentials, the case here is not completely uncommon, yet the
factual underpinnings are quite revealing of another cautionary
tale for employers who make decisions based on conduct that they
frown upon.
According to news reports, Tiffany Webb worked for the DOE
for twelve years, having started as a teacher long after she
modeled undergarments in her late teens. An
otherwise benign employment history became a stimulating
exposé after a student apparently showed photos of Ms. Webb
to the school principal. Ms. Webb contended that the
Internet photos were altered and unauthorized, but nevertheless a
committee formed by the Schools Chancellor found by a 2-1 majority
that "[t]he inappropriate photos were accessible to
impressionable adolescents . . . and [t]hat behavior has a
potentially adverse influence on her ability to counsel students
and be regarded as a role model."
Employer Take Away: What should you
as an employer take away from this
development?
Many times, you don't particularly care for something one of
your employees has said or done. Often times, it is ok
to act on that preference when your company seeks to promote
legitimate business concerns, but sometimes your action can be
deemed unlawful. Setting Ms. Webb's
termination under the bright lights of our analysis, there are a
few questions that your company should ask in order to avoid a
booby trap for the unwary:
1. Have you
considered whether the source of your information (through social
media or otherwise) has actually checked out, and there is a
reasonable likelihood that it is what it purports to be?
2. Have you
considered whether adverse action would violate laws governing
decisions based on an employee's prior criminal history?
3. Have you
considered whether adverse action would violate laws prohibiting
decisions based on an employee engaging in lawful activity that is
off your company's premises, and not during working time?
4. Have you
considered whether the employee's conduct constitutes protected
activity engaged in concert with other co-workers about the terms
and conditions of your workplace?
5. Have you
determined whether adverse action is causally linked (temporally or
proximately) to a complaint made about protected conduct?
6. Are you acting
in accordance with a truly legitimate business interest, and in a
manner that is consistent with past decisions made about other
similarly-situated employees?
Without giving ample consideration to these and other relevant
questions, a judge or jury may very well see right through your
employment decision and hold your company liable for alleged
wrongdoing.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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