Porn investigation leads to discrimination lawsuit

Demoting an employee for accessing and viewing pornographic material on his work computer should be an air-tight decision, but a recent court case demonstrates how even a seemingly justified punitive action can lead to a lawsuit.

The case stems from a company investigation after one employee complained that an entire department frequently viewed pornography on their work computers. The company brought in an outside forensic expert to seize the computers and conduct an investigation of each employee’s pornographic activities.

However, according to the employee’s lawsuit, the company only ordered written reports from the outside investigator for the three African-American employees on the team and only took adverse action against the plaintiff, who was African-American.

Shortly after his demotion for pornographic activity, the plaintiff was fired for a time clock violation that he claims was motivated by racial bias. The employee claims that similarly situated white employees did not face the same consequence as black employees for the same violation of company policy. After hearing the initial evidence, a trial court determined that the company’s process and employment decisions may have subjected African-American employees to disparate treatment; a jury will now decide whether the employee’s claims are valid (Crabbe v. American Fidelity Assurance Co., WD Okla, April 2015).

Tips: This case serves as a good reminder that you need to look at more than just violations of company policy when taking employment actions. If other employees have violated the same company policy, but haven’t suffered the same consequence, you open yourself up to a discrimination or retaliation claim.

Keep in mind this isn’t limited to race discrimination claims; disparate treatment claims examine whether employees in any protected class (e.g. age, disability, protected activity, etc.) are treated differently than employees who aren’t part of that group. To avoid being caught off guard by a disparate treatment claim, consult your Vigilant employment attorney before taking disciplinary action. For information regarding discrimination laws and termination of employment, click through our blog for more helpful articles.