Caterpillar Inc. is being sued for alleged unlawful discrimination based on age when it fired an over-40 employee because of her off-duty Facebook post. The fired employee claims she was a victim of disparate treatment based on age. But Caterpillar said the employee was terminated because it feared she might be harassing a co-worker whom she commented about on Facebook.
Tammy Applebaum worked as a distribution clerk at Caterpillar’s Lafayette, IA, plant. She alleges she was fired for writing a comment responding to a younger co-worker’s Facebook post. The younger employee was not reprimanded by Caterpillar.
According to the complaint, Natasha Burns, the younger Caterpillar employee, was dating Applebaum’s son. Burns posted a Facebook message, while at work, alluding to the fact that “all the guys wanted to take nude photos” of her. When Applebaum saw the post she posted a comment on Burns’ Facebook page, saying “you’ve been down that road before.”
About two weeks later, Caterpillar told Applebaum she was being terminated immediately because it feared she would create “a hostile working environment” for Burns, according to the complaint.
“Applebaum’s case is less about social media policies than about Caterpillar using a pretext to rid itself of a 52-year-old employee because of her age,” said Jay Meisenhelder who is representing Applebaum in this suit.
Caterpillar claimed Applebaum posed a harassment danger even though she and Burns worked in different departments and Applebaum never approached Burns or exchanged any words with her at work, the complaint said.
Meisenhelder said the company’s decision to fire Applebaum while not disciplining Burns for apparently posting on Facebook during working hours is disparate treatment that violates the Age Discrimination in Employment Act.
According to Bloomberg BNA’s interviews on the case, two attorneys who represent employers in labor and employment cases, but are not involved in this case, had the following to say:
- John DiNome, a partner with Reed Smith in Philadelphia: Employers might have grounds to discipline or discharge an employee for comments posted online if they can link it to other conduct that might support harassment concerns. However, employers should tread carefully because workers’ off-duty social media posts can be protected activity under the National Labor Relations Act.
- Michael C. Schmidt, a Cozen O’Connor partner in New York: Employers also need to be careful about regulating their employees’ off-duty conduct because some states, including New York, restrict employers’ actions based on workers’ lawful off-duty conduct. But the “heightened sensitivity” to potential harassment means employers must pay more attention to their employees’ online activity. Employers should at least investigate if they learn about social media posts that might be harassing to co-workers, he said. Harassment that occurs online could leave an employer just as vulnerable to claims as if it happened “in person at the water cooler,” Schmidt said.
Applebaum v. Caterpillar, Inc. , N.D. Ind., No. 16-97, complaint filed 11/25/16.