Social Media and Employment Law: Lessons About Forking and Big Dongle Jokes

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No naked pictures were posted.  No sexually charged words were Tweeted.  No demands for sexual favors were made.

Typically, social media’s role in sexual harassment has been to serve as “evidence” of inappropriate behavior; like someone posting a sexually explicit comment, or offensive pictures.  However, recently at PyCon 2013, “the largest annual gathering for the community using and developing the open source Python programming language”, Adria Richards used social media to report, to the general public, allegations of sexual harassment.   The fallout, so far, has been that 1) one of the two alleged harassers was fired; 2) Ms. Richards was fired; and 3) the general public has been divided and very vocal about this situation.  It has been reported that Ms. Richards has been threatened with acts of violence, and that hackers and Anonymous have corrupted her blog as well as her former employer’s website.

What Happened at PyCon 2013?

First, the “facts” of the situation as we know them from Ms. Richards’ post titled “Forking and Dongle Jokes Don’t Belong At Tech Conferences”:  Adria Richards was an employee of SendGrid, and describes herself as an “Endlessly Enthusiastic Technology Evangelist.”  Ms. Richards attended PyCon 2013 in Santa Clara, CA.  She was in a large crowd listening to a presentation when she overheard two men talking.  The men were sitting behind Ms. Richards, and were not talking to Ms. Richards.  One of the men stated that “he didn’t find much value from the logging session that day.” And, because she agreed with him, Ms. Richards “turned around and said so.”  The man, according to Ms. Richards, then said that “an earlier session he’d been to where the speaker was talking about images and visualization with Python was really good, even if it seemed to him the speaker wasn’t really an expert on images.  He said he would be interested in forking the repo and continuing development.”

Ms. Richards says things would have been fine, but then “the guy next to him began making sexual forking jokes,” and eventually starting talking about “big dongles.”  She says that she was flustered by these jokes (though she also admits that the dongle jokes don’t even make sense), and that she finally snapped after she saw a photo of a young girl at the Young Coders workshop on the main stage.

Using Twitter to “Report” the Men Behind Her and the Aftermath

Instead of turning around in her chair to tell the two men to stop making their comments, or that she was uncomfortable with their behavior, she snapped a photo of them and tweeted:  “Not Cool.  Jokes about forking repo’s in a sexual way and ‘big’ dongles.  Right behind me.” She also tweeted:  “Can someone talk to these guys about their conduct? I’m in lightning talks, top right near stage, 10 rows back.”  (Note, Ms. Richards has approximately 14,500 followers on Twitter).  After these tweets, only then did Ms. Richards attempt to contact PyCon staff.  And, once they were contacted, the staff took immediate corrective action.  PyCon also used social media to post information about its response to Ms. Richards’ complaint.

One of the two men in the photo has been fired by his former employer, PlayHaven.  The other man, also a PlayHaven employee, was not fired.  Ms. Richards was also fired.  SendGrid’s CEO, Jim Franklin, explained that while SendGrid supports Ms. Richard’s right to report the alleged behavior to PyCon officials, SendGrid does not support the methods Ms. Richards chose to employ.  Further, as a result of the public backlash to Ms. Richard’s methods, SendGrid concluded that Ms. Richards could no longer serve as an evangelist to build community when her actions have severely divided the community.  (See Mr. Franklin’s explanation of Ms. Richards’ firing here).

Trying to Make Some Legal Sense of This Situation

So, from an employment law perspective, what is going on here?  Below I address some of the legal issues with this situation.

1.  Ms. Richards was (most likely) NOT a victim of unlawful sexual harassment.

I admittedly don’t know all the facts.  Under both federal and California law (where this incident occurred), it is unlikely that the “big dongle” and “forking” comments rise to the level of unlawful sexual harassment.  Generally, to create a “hostile work environment,” the comments/actions need to be 1) unwelcome, 2) severe or pervasive, and 3) unreasonably interfere with the “victim’s” working conditions.  Here, the comments are not likely to be seen as “severe” or “pervasive,” under the law, nor did they unreasonably interfere with Ms. Richards’ working conditions.  Yes, the comments were childish, unprofessional, crude and Ms. Richards took offense to them, but these were isolated comments, not directed to Ms. Richards, and certainly were not threatening.  Additionally, comments like these are analyzed through a subjective, as well as objective, lens.  Subjectively, should Ms. Richards pursue a case of sexual harassment, it is likely the defense will point to the several off-color comments Ms. Richards has posted on her own, including a reference to the size and length of male genitals that she made while at PyCon 2013.

Compare the comments Ms. Richards heard to these comments/actions that Marlenis Smart, a female Miami Beach firefighter endured, according to the Miami Herald.  Smart sued the city in May 2010.  She claimed that colleagues called her derogatory names, that she once found a missing bathing suit stained with semen, and that she was walked in on while showering.  When she asked for a lock to be put on the bathroom door, Smart was given a broomstick handle that said “Smart Lock.”  Now, that is sexual harassment, right?  Wrong.  On March 26, 2013, federal Judge Marcia G. Cooke, overturned a jury award and determined that Ms. Smart’s allegations did not meet the legal definition of sexual harassment.

Every case is different, but it is easy to say that if the events the Ms. Smart put up with were not unlawful, then the comments Ms. Richards overheard certainly were not either.  (Also complicating any potential sex harassment claim by Ms. Richards, is that it is unclear whether SendGrid, her employer, could even be held liable for the comments by non-employees at an off-site conference.  The issues regarding both sides of this analysis are certainly too complex to fit into this post).

2.  Did Ms. Richards’ Engage In Protected Activity?

PyCon 2013 had a Code of Conduct in place, and it contains a procedure for reporting unwelcome behavior.  And, I hope that SendGrid (and every employer) has an anti-harassment policy and a clearly worded complaint procedure.  If SendGrid’s policy is like PyCon 2013’s (and like most employers’ policies), then it too has a very clear complaint procedure that directs “victims” to proceed with their complaints through an internal process, which will provide the employer an opportunity to correct the situation.  Clearly, Ms. Richards did not follow PyCon’s procedures by tweeting the pictures and comments.  However, whether you agree with her methods or not, it is likely that her actions would still be considered a “protected activity” under the law, and thus, she should not be retaliated against for reporting the alleged harassment.  (This is true as long as she had a reasonable belief she was being harassed).

3.  Did SendGrid Unlawfully Fire Ms. Richards?

To avoid liability if Ms. Richards files a claim for unlawful retaliation, SendGrid would need to prove that it fired Ms. Richards because of a legitimate non-retaliatory reason.  In a typical employment setting, an employer usually demonstrates this by proving that the employee was fired due to economic reasons, poor performance, or misconduct, for example.  Essentially, SendGrid would need to prove that it did not fire Ms. Richards due to her complaint.  In its statement, SendGrid noted that it fired Ms. Richards because of the method she used to make her complaint, and not the actual complaint itself.  SendGrid also claims that Ms. Richards can no longer be effective in her job due to the very public nature of this situation.  SendGrid is walking a fine line.  The assumption SendGrid wants to put forth is that if Ms. Richards would have privately handled the situation, then she may have retained the ability to build community, and thus, avoid termination.  I will agree with other employment lawyers and say that this really is “a tough one.”  But, I have absolutely no doubt that a plaintiff-side employment lawyer will take on this case of alleged retaliation.

4.  Did PlayHaven Unlawfully Fire One of the Alleged Harassers?

No, not based on the information we’ve been provided, and assuming that the employee was at-will.  That employee was terminated for making the unprofessional comments, and PlayHaven certainly had the ability to take disciplinary action.

5.  What Should “Victims” Do When Harassed?

Generally, there are five actions an employee should take when confronted with harassment/discrimination:

  1. Tell the person their behavior is unwelcome and makes you uncomfortable;
  2. Tell the person to stop the behavior;
  3. Review the employer’s (conference’s) policies and procedures, and prepare thoughts and notes;
  4. Report the harassment to the appropriate person as identified in the policies (usually a Supervisor/Manager, Human Resources, Director, or other “management;” and
  5. If unsatisfied with the internal process, contact the U.S. Equal Employment Opportunity Commission, or state agency like the California Department of Fair Employment and Housing.

6.  What Should Employers Do When A Complaint Is Made?

Generally, an employer should engage in these five steps after it receives a complaint:

  1. Keep the complaint as confidential as possible;
  2. Engage in a timely, effective and thorough investigation;
  3. Take necessary action to stop the harassment;
  4. Do not retaliate against the complainant; and
  5. Continue to monitor the situation.

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Wu
James Y. Wu contributes a monthly column on Social Media and Employment Law. For nearly 20 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University. +James Wu
James Wu

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