Late last month Adria Richards, an employee of technology company SendGrid, tweeted from the industry conference PyCon about inappropriate jokes she overheard from two developers sitting in the row behind her in an incident the Twitter community has dubbed #donglegate:
The tweet also contained a photograph of the developers, who worked for PlayHaven. Richards asked conference organizers to address the issue with the developers and they apologized. But Richards didn't just let it go—she later blogged about the incident and also, in response to backlash, tweeted that SendGrid supported her:
But SendGrid later terminated Richards. The company stated in a blog post of its own that it "supports the right to report inappropriate behavior, whenever and wherever it occurs," but took issue with Richards' methods, explaining its view that "public shaming" was not the right way to handle the incident. SendGrid also noted that the whole incident had resulted in massive unwanted and at times vitriolic publicity that endangered its business.
Does Richards have a viable retaliation claim under Title VII against SendGrid? The first question is whether she even "complained." Did Richards' tweet to her nearly 15,000 Twitter followers put SendGrid on notice that she was opposing an unlawful employment practice? This is a question for the factfinder that doesn't have an easy answer.
Assuming Richards "complained," she suffered an adverse employment action when she was terminated, and the adverse action was, by SendGrid's own admission, causally related to the protected activity. But did Richards also create an independent, non-retaliatory reason for SendGrid to terminate her through her extremely public and, at least in SendGrid's view, divisive method of reporting it? One line of case law holds that "[e]ngaging in protected activity 'does "not insulate an employee from discipline for . . . disrupting the workplace."'" Arraleh v. County of Ramsey, 461 F.3d 967, 977-78 (8th Cir. 2006). SendGrid could have a viable defense based on a legitimate business need to maintain its reputation. Richards' actions may have even been defamatory: one of the developers was terminated because of the tweet.
It remains to be seen whether Richards will file suit against SendGrid. Clearly social media is raising unique legal questions in the employment context. Any employer would be wise to consider these questions with counsel before it encounters a #donglegate of its own.