Lawsuit involving sexual harassment and Facebook posts: Former hospital employee should have used the proper channels to make a complaint.

This lawsuit against hospital over an employee’s Facebook posts contains important lessons.

This lawsuit against hospital over an employee’s Facebook posts contains important lessons.

Healthcare industry lawsuits and settlements are frequently covered in the media as the baby boomer generation ages and is the focus on public and private organizations involved in the delivery of healthcare services. From insurance issues to physician practice matters, we all hear more about lawsuits and settlements these days when we find reports of these cases in our social media news feeds and the news media apps on our mobile devices. Michael V. Favia and Associates, is pleased to summarize and report to our friends and colleagues, some compelling legal matters in the healthcare industry.

Healthcare lawsuits and decisions highlight important matters that should be important to healthcare consumers. From physician and administration mistakes and malpractice, to new technologies and the discovery of failing products, there may be enough stories out there to make us fearful of stepping foot inside a doctor’s office or care clinic, even in the best neighborhoods. It is important to note that we rarely hear about the majority of routine and rare occurrences and procedures in medicine that happen smoothly without any complications. The analogy is similar to air travel; the news does not report on all the successful trips where nothing happens.

 Lawsuit against hospital over an employee’s Facebook posts reminds us all to use great care in posting.

The case against Mercy Hospital in Independence, Kansas, went all the way to the U.S. Supreme Court, involving Facebook posts in which it is alleged that a supervisor engaged in improper behavior and whether the posts were protected by the law. The high court, which can pick and chose the cases it hears, rejected the request to review the decision of the appeals court that held that the Facebook posts were not protected by federal anti-retaliation law. The court stated, “It is difficult to see how an employer who does not (or should not) know an employee has made a complaint could discriminate because of that complaint,” as reported in the Beckers Hospital Review.[i]

Summary of the factual allegations in this case:

  • A former hospital employee made several Facebook posts alleging a supervisor was engaging in sexual harassment of the employee when still working at the hospital;
  • The supervisor denied any and all of the allegations when the parties met with an H.R. director;
  • The employee later filed a complaint stating the supervisor’s alleged unwanted touching and sexual remarks created a hostile work environment, and the hospital did nothing about it;
  • The employee pointed to Facebook posts (set on public settings for all to see) to prove complaints of inappropriate activity, but the hospital and the district court agreed that the posts did not put the hospital “on notice,” suggesting the employee lied in the posts and otherwise failed to follow the appropriate policies and procedures for sexual harassment claims.

Some takeaways from this case:

This factual scenario illustrates a few concepts of which both employees and employers should be aware. First, making statements on social media sites may or may not bring about any desired result. Posts about what happens at work can get people in hot water if the right person sees the post and takes action. Likewise, if nobody sees the post, it is not going to bring about a desired result of action by those who might never know the post was published in the first case. Second, the value, if any, of the individual’s Facebook posts could be in the form of evidence to be offered in litigation, but Facebook posts alone hardly prove the case of someone with a complaint. Would you agree with the appeals court, critical of the former employee, who could have but elected not to use the proper channels to make a sexual harassment complaint?

Social media sites are tools used for communication, both positive and negative in scope. Employers and employees should, as a matter of policy, consider and understand mutual expectations of what happens at work and what is appropriate. Even though people may make statements in the heat of passion, and sometimes quickly retract and delete their statements, the damage may already be done and the deleted posts may come back to do more hurt than help.

We hope you enjoy learning from lawsuits and settled cases in the healthcare industry as we work to share news, tips and trends.

If you are interested in learning more about Michael V. Favia & Associates, serving Chicago and its suburban communities, please visit the Favia Law Firm website for resources and articles of interest. To contact the firm to speak to a lawyer about a healthcare-related concern, you may dial (773) 631-4580. For more information about the firm’s practice areas, you can also visit the firm’s Facebook and Twitter sites. Please “Like” and “Follow” respectively to keep in touch!

[i] Beckers Hospital Review, Supreme Court Turns Away Suit Against Mercy Health Over Employee Facebook Posts, by Ayla Ellison, May 28, 2014.

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