New York Employment Lawyer Blog

I recently mediated a case between a very wealthy, high profile businessman and his male employee. My client was fired after he refused to have sex with the boss. Nobody really disputed the basic facts of the case, but the mediation eventually turned on my client’s MySpace page and his “profiles” on other gay dating websites. The opposition argued that due to the explicit nature of his postings, particularly on a site called ManHunt, where he listed certain sexual preferences, that my client’s emotional damages should be severely limited.

When I first interviewed the client, I asked him a number of questions about any embarrassing photos or videos that might be out there, but never asked about any web postings. Luckily, a colleague of mine in her 20’s suggested I check to see if the client had a MySpace page. After seeing the fairly innocuous site, I advised him to curb that activity or be very careful what he posted. However, I never thought about advising him about any other websites, and he never thought it was significant enough to volunteer the information.

During the mediation, the mediator, an extremely experienced litigator with a stellar reputation, who graduated law school in the 1950’s, was visibly upset by the postings. He didn’t understand about the prevalence of online dating, or that, for many people, this has become an acceptable way to meet people. I argued that in certain communities, having a profile on a hook-up site wasn’t a big deal, and just because my client had one didn’t mean that he should have been fired for not sleeping with his boss. Neither explanation went over very well. The mediator used the rather compelling argument that, while we may not think it was a big deal, he was very disturbed by the language, and an arbitrator or jury, may be as well.

This got me thinking. Neither my colleague nor I truly thought it was relevant or a big deal, but we were looking at the information from our own perspectives. Would a jury or an arbitrator think the same way we did? Probably not. In all likelihood an arbitrator would be of a similar generation as the mediator, and if we were in front of a jury, we would also have jurors who would think it was unusual. When I stepped back, I realized that we would have to do a lot of extra explaining to overcome the information. And the hurdles that we had to go through just with the mediator caused us concern.

Since the mediation, I now ask additional questions during my initial client interview. Even though I have doubts as to whether or not this information could be introduced at trial, from now on, in any type of sexual harassment case, I always mention to my clients that any activity they do online can be easily tracked, and they should probably remove any profiles or postings that they would be embarrassed about having a jury see. Although the web gives us access to a lot of people and information, it also important to remember that it gives a lot of people access to information about us that can be potentially harmful to a case.