Elizabeth A. Semler
503.243.1661 x 264
 

Employment e-Alert: Employee Facebook Postings as Evidence of Distress (or Not)

September 2012

Elizabeth A. Semler
503.243.1661 x 264

When employees sue employers for discrimination, it's a safe bet the employees will claim to have suffered emotional distress. Employers defending against such claims have historically sought discovery of employee medical records, where such records are relevant to the emotional distress claims. The United States District Court for the District of Oregon recently discussed when, and to what extent, an employer may also obtain an employee's social media postings in relation to a claim of emotional distress.

In Robinson v. Jones Lang LaSalle Ams., Inc., 2012 U.S. Dist. LEXIS 123883, 5-8 (D. Or. 2012), the plaintiff sued her employer for discrimination and retaliation. The employer sought discovery of the plaintiff's social media postings. The Oregon District Court ordered the employee to produce social media postings for a specified time period, which might establish either: (1) the onset, intensity, and cause of the emotional distress allegedly suffered by the employee because of her employer; or (2) the absence of the employee's alleged emotional distress where it reasonably should have been evident. The Court's decision was based on decisions from other courts which held that, where an employee plaintiff alleges "severe" emotional distress (i.e., emotional distress that goes beyond "garden variety"), discovery of social media communications relevant to plaintiff's emotional distress claims is permitted, even if the communications do not reference the events described in plaintiff's complaints.

The Robinson case confirms that, in the Internet era, employers have more options than in the past to investigate, and potentially disprove, employee claims of emotional distress. When defending claims of emotional distress, employers should not limit discovery to employee medical records, but should, in most instances, seek discovery of the complaining employee's social media postings on the Internet, including Facebook, LinkedIn, Twitter, Instagram, and the like.

Related Practice Areas

Employment

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