Labor & Employment

Employees Fired Over Pornographic Emails Lose Age Discrimination Suit

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Employees who get fired for exchanging sexually explicit emails on their employer-provided email accounts have no basis for claiming later they were discriminated against on account of their age, a federal appeals court has held.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals, in a Nov. 17 ruling (PDF), upheld a district court order granting the employer’s motion for summary judgment in the age-discrimination case against it by the four fired employees.

The decision should serve as a reminder to employers that they can and should discipline employees for violating company policies, even though the employees may belong to a protected class, according to the Delaware Employment Law blog.

The case began in 2007, according to the court file, when the company, while investigating a complaint of sexual harassment against one of the four employees, discovered that he and five of his fellow employees had regularly exchanged emails containing sexually explicit photographs, which is expressly prohibited under company policy.

In deciding on the appropriate level of discipline for each employee, the company considered the nature and volume of the emails exchanged, whether they were sent to individuals inside or outside the company and whether they were sent to customers or vendors.

The four fired employees, who were all in their late 50s or early 60s, then filed suit against the company, claiming they were discriminated against because of their age in violation of the Age Discrimination in Employment Act.

The trial court judge, ruling in favor of the employer, found that the fired employees had failed to demonstrate that, but for their ages, they would not have been fired.

But the employees, in their appeal, tried to show that the reason offered for their termination was merely a pretext for age discrimination by offering evidence that they had been subjected to age discrimination in the past, which the appeals court rejected.

“Given the conduct in which appellants engaged and the lack of sufficient evidence suggesting an atmosphere of age discrimination at [the company], there is no basis for a finding that [the company’s] proferred rationale was a pretext for age discrimination,” the court wrote.

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