Caterpillar Hit With Age Bias Suit Over Facebook Firing

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By Kevin McGowan

Nov. 28 — Caterpillar Inc. unlawfully discriminated based on age when it fired an over-40 employee because of her off-duty Facebook post, according to a lawsuit filed in federal court in Indiana ( Applebaum v. Caterpillar, Inc. , N.D. Ind., No. 16-97, complaint filed 11/25/16 ).

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, according to the complaint.

Tread Carefully on Social Media

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, said John DiNome, a partner with Reed Smith in Philadelphia who represents employers in labor and employment cases.

But employers should tread carefully because workers’ off-duty social media posts can be protected activity under the National Labor Relations Act, DiNome told Bloomberg BNA Nov. 28.

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, said Michael C. Schmidt, a Cozen O’Connor partner in New York who also represents employers.

But the “heightened sensitivity” to potential harassment means employers must pay more attention to their employees’ online activity, Schmidt told Bloomberg BNA Nov. 28. 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.

Neither DiNome nor Schmidt is involved in the Caterpillar litigation.

Pretext for Bias?

Tammy Applebaum, a former distribution clerk at Caterpillar’s Lafayette, Ind., plant, alleges she was fired for writing a comment responding to a younger co-worker’s Facebook post.

The younger employee, although she apparently posted on Facebook while she was at work, wasn’t reprimanded by Caterpillar, Applebaum said in her Nov. 25 complaint.

Natasha Burns, the younger employee, was dating Applebaum’s son. She posted a Facebook message alluding to “all the guys” wanting to “take nude photos” of Burns, according to the complaint.

Applebaum then 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 discharged because it feared she would create “a hostile working environment” for Burns, the complaint said.

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, the Indianapolis lawyer who represents Applebaum.

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.

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, Meisenhelder told Bloomberg BNA Nov. 28.

Caterpillar doesn’t comment on pending litigation, a company spokesperson in Peoria, Ill., told Bloomberg BNA.

Jay Meisenhelder Employment and Civil Rights Legal Services PC represents Applebaum. No attorney has yet entered an appearance for Caterpillar.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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