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The ELA is proud to welcome our newest member firm: LOGOS  in Iceland!

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Extraordinary Employee Misconduct: No Pics of Your Privates at Work!

Submitted by Firm:
Shawe Rosenthal LLP
Firm Contacts:
Gary L. Simpler, Parker E. Thoeni
Article Type:
Legal Update
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Here’s another installment in our occasional series on the I-can’t-believe-they-did-that actions of employees. Now, I know that there’s a more common term for these types of pictures of a guy’s personal junk, but one of my law partners (let’s call her “Lulu,” shall we?) insisted that I not use it. Even with asterisks. So … let’s see what lessons we can draw from this situation, shall we? Beyond the obvious, of course.

In that case, an analyst had a car accident and was taken by ambulance to the emergency room with a concussion. While there, he texted his supervisor to let her know about the accident and, according to him, tried to send her a picture of his hospital bracelet. Instead, he sent her a picture of, as the Court describes it, “a pornographic image of a male’s nude genitals being held in a hand” (!!!!). (By the way, the employee had argued that his conduct wasn’t harassment because he’s gay, which the supervisor knew. The supervisor noted, however, “I mean just because someone has a certain sexual orientation, we live in a very modern time. Just because he was married to a man doesn’t mean that he wasn’t also interested in women.” Fair enough.) I’m sure that no one is surprised that the supervisor was upset, that HR promptly investigated, and that the employee was terminated for violating the Company’s Code of Conduct and harassment policy.

You may be surprised, however, that the employee then sued for violations of the Family and Medical Leave Act. Yes, really. Yes, it was pretty … cheeky (yes, Lulu, I avoided another word) of him. He claimed that the Company interfered with his FMLA right to leave to recover from his accident and retaliated against him for requesting leave.

For an interference claim, an employee must show that he was entitled to a benefit under FMLA (i.e. leave) and the employer interfered with the benefit (such as by terminating him to avoid providing the leave). As for a retaliation claim, the elements are that the employee engaged in activity that is protected under the FMLA (like requesting leave), that he suffered an adverse action (like termination), and the decision is “causally related” to the protected activity. In this case, the employee pointed to the fact that he was terminated right after requesting leave as the “causal” connection – and in many cases, without more, close timing can be enough to establish that connection. But here, there was more…

With regard to the retaliation claim, the Court found that the Company was able to show that it had started its investigation into the penile pic (is that OK, Lulu?) before the employee requested leave. As the Court quoted, “When an employee engages in misconduct that triggers a process leading to his termination, the mere fact that he subsequently engaged in a protected activity does not establish causation.”

But also, as the Court noted, “Sending such a pornographic image to one’s supervisor is a legitimate, non-retaliatory reason to terminate an employee.” And, as to the interference claim, the Court also found that this conduct constituted grounds for termination regardless of the request for leave. (I think we can all agree on that.)

So what are some of the lessons for employers here, beyond the obvious “no phallic photos at work”? (I still didn’t use that term, Lulu)

  • Address misconduct promptly. In this case, the fact that the Company started its investigation immediately was tremendously helpful in defending against the accusation of retaliation.
  • Document, document, document! The paper trail on the Company’s investigation and decision-making process was key to its defense.
  • Know that an employee is not insulated from the consequences of their misconduct just because they request FMLA leave. Given the extensive protections of FMLA, many employers are somewhat apprehensive about taking adverse actions against employees who invoke that law. However, employees can and should be held accountable for their employer’s performance and conduct standards – as long as it’s consistent with how the employer treats other employees with similar performance and conduct issues.
  • Recognize that intent is not necessary to constitute harassment. Even if the employee didn’t mean to send the display of the family jewels (Ok, Lulu?), and even if he had no sexual interest in women generally or his supervisor in particular, his conduct was still inappropriate and the Company was well within its rights to fire him.

(And Lulu has heaved a sigh of relief.)

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