A Virginia woman created a social media storm last month when she was photographed giving the presidential motorcade the middle finger while riding her bike. When she notified her bosses at Akima, a federal contracting firm, that she was the woman in the photo, they instantly fired her and escorted her out.
Juli Briskman had wordlessly posted the photo on her social media accounts but didn’t identify herself. (She did not post the photo on her LinkedIn account, which mentions Akima.) Still, the company cited Section 4.3 of its social media policy, which said employees can be terminated for their private social media activity that contains “obscene, malicious or threatening content.”
Virginia is an at-will state, meaning employees can be fired for essentially any legal reason. But Akima still may have issues with the firing. Apparently, a male director at the company was able to keep his job this year after posting lewd comments on his Facebook page that featured Akima as his cover photo.
That means the company could face a sex discrimination lawsuit. But the finger-flying cyclist will only be successful if she can prove that gender was a motivating factor for the termination. If gender wasn’t considered, then Akima can treat the two at-will workers differently. If sued, Akima will surely be asked why it treated the two situations differently. One possible answer by Akima is that, as a federal contractor reliant on government business, the company is especially sensitive about having workers show public displeasure with the current administration. You can be sure her lawyers will want to sift through the emails of Akima execs to look for smoking gun comments of gender bias.
Another possible twist: Briskman was actually in charge of Akima's social media presence during her six months on the job. She was the one who flagged the male director's lewd post and alerted senior. It's possible that she could claim retaliation for reporting his rule violation. A closer look at Virginia's whistleblower laws would be needed, but we'll leave that up to Briskman's lawyer.
Bottom line for HR and employers: Inconsistent treatment of employees is your easiest path to court. By sticking to the motto of DITO DITA (Do it to one, do it to all), you’ll avoid most threats of discrimination liability.