It’s Not A Good Idea To Admit To Discrimination in a Text Message

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Sometimes, I just have to shake my head when I read about an employment decision gone horribly wrong. And this one is really a head shaker: according to a lawsuit just filed by the EEOC, a manager at a Franklinton, Louisiana, restaurant fired a newly-hired worker after sending her a social media message saying, “I’m not gonna be able to hire you. I didn’t realize that you were expecting a baby.” When the worker reapplied for work several months later, the restaurant wrote “pregnant” on her application and did not rehire her.

Now, this is just the EEOC’s side of the story, so the restaurant may have an entirely different version of the facts. But I find it unlikely that the EEOC is going to fabricate the existence of a social media message wherein the manager admits that he is discriminating on the basis of pregnancy, which is a violation of Title VII of the Civil Rights Act.

Here’s the thing: it is unlawful for an employer to fire an employee simply because she is pregnant. Furthermore, an employer cannot make assumptions about what a pregnant worker can or cannot do.

And please–do not fire (or unhire) employees via social media messages or text messages. Just don’t. It is not professional, and the shorthand often utilized in those media can confuse your message. Any time you put something in writing regarding an important employment decision, such as hiring, firing, promotion, or discipline, expect that it will be shown to an attorney, maybe the EEOC, or ultimately, a jury. How will your message look to someone who doesn’t know you or your business?

Having an attorney review these types of communications in advance will save the company money in the long run. Let’s face it: if the restaurant manager above had let the company’s attorney review his social media message to the pregnant worker before he sent it, I like to think that there is a high probability that the message would have said something completely different, and maybe the EEOC wouldn’t be suing the company. So asking an attorney to review these communications in advance can be money well spent.

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Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters.

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