FORMER EMPLOYEE ASSERTING SEXUAL HARASSMENT IN THE WORKPLACE ORDERED TO PRODUCE PRIVATE SOCIAL MEDIA COMMUNICATIONS AND PHOTOGRAPHS

A Brooklyn Federal Court Judge recently ordered a employee who is suing her former employer for sexual harassment to produce, as part of that litigation, certain social media communications and photographs.

In Reid v. Ingerman Smith, the former employee is alleging that she was sexually harassed at her former workplace, which is a Long Island law firm.  As a result of the alleged harassment, according to the employee, she suffered monetary, physical and emotional damages.

During the “discovery” phase of the litigation, the company demanded information and documentation regarding the employee’s social media accounts.  The employee refused to provide that information and documentation, and the parties asked the court to resolve their dispute.

The defendant argued that since postings and photographs of the public portions of the former employee’s Facebook account contain information which, in their opinion, contradicts the employee’s claims of mental anguish resulting from the alleged sexual harassment and the termination of her employment, the non-public portions may also provide relevant information.

The employee, on the other hand, argued that the information requested was private, and that the company’s request was too broad.

The court first examined the employee’s public Facebook photographs and comments, and deemed them to be relevant to the question of her mental and emotional state, as well as the various activities in which she engages.  Despite this, the court did not require the employee to disclose all of the material in her social media account because, the court felt, not all such postings would be relevant.  Rather, the court directed the employee to produce all social media communications and photographs that reveal or relate to her emotional and mental state, as well as to events that could reasonably be expected to produce a significant emotional or mental state.  In addition, the court ordered the plaintiff to produce any photographs that of herself that she, or others, posted on social media.

The court’s decision follows a recent trend of courts directing that employees suing employers for discrimination and/or harassment in the workplace produce postings, communications and photographs from social media sites such as Facebook, in order to allow the companies to attempt to discredit the employee’s claims of mental pain and suffering.  It is yet another example of why employees should be careful regarding what they post on such sites.

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