Facts: JB Interiors, LLC specializes in interior design and interior decorating for residential and commercial properties in the Pacific Northwest. The company began as a family business in 1972. Today, it retains its headquarters in Issaquah, Washington but has grown to over 150 employees, including support staff.
The current executive management team at JB Interiors comprises 8 men and 6 women, some of whom are direct descendants of the original founders. Although they are politically conservative as a group, they and their employees believe the team to be fairly progressive when it comes to creating a healthy workplace that respects employee rights and work-life balance. In that regard, in early 2019 the team contracted with Internet Life Balance, Inc.to provide all employees a technology that allows work-time access to the Internet that is completely free of employer monitoring. This “sandbox” technology creates an isolated secure pathway to the Internet from an icon on employer desktops. Here, employees can check personal email, social media and the like. Because it is isolated, the technology also ensures that the company’s computer system will not be compromised by security threats and viruses. Internet Life Balance thus provides JB Interiors with both a security solution and a way to honor employees’ personal privacy while at work.
Employees are encouraged to create community with each other by using Internet sites such as Instagram and Facebook in ways that allow them to connect with work colleagues. For example, many employees are “friends” on Facebook and/or follow each other in Instagram. Under its current technology use policy, all JB Interior employees are required to use Internet Life Balance for such personal Internet use while on site. Laptops and handheld devices are restricted from such use and, with the exception of cell phone calls and necessary text messaging, discouraged from workplace usage all together. Work related Internet usage such as company email is excepted. Work-related Internet usage occurs via Microsoft Outlook for email and Internet Explorer, both subject to employer monitoring for possible misuse and protection of JB Interiors’ intellectual property.
With the exception of the executive management team, all employees at JB Interiors work in open space on desktops that are not assigned to any particular individual. Employees simply select a computer station, typically at the beginning of the workday. Occasionally employees will select the same station out of habit, but generally the open space policy facilitates employee relationships by encouraging mingling and keeps the workplace from becoming routine.
In June of 2019, a small group of 6 employees who identify as LGBTQ approached the executive management team with a request that the company’s employee handbook be updated to recognize LGBTQ status as protected for purposes of gender discrimination including gender identification and sexual orientation.
The current employee handbook states that gender discrimination of any kind, including sexual harassment, will not be tolerated and includes a procedure for reporting incidents that is compliant with federal and state employment law. JB Interiors has not, however, provided employee training about the policy since 2010. There have been no incidents of reporting harassment of any kind since 2008.
When other employees found out about the change request, tension between camps in favor and against grew. Until recently the status of the LGBTQ employee requesters was not discussed openly at work. Although they assumed they would have the support of their colleagues, a group of five employees (the “objectors”) began a subversive campaign against their LGBTQ peers.
Using the private Internet access provided by Internet Life Balance, the objectors began posting comments on Facebook critiquing the request and in some cases commenting disparagingly about their LGBTQ co-workers’ gender identities and sexual orientation. The objectors used Facebook to call for unity against their LGBTQ co-workers and to take action to make work “so miserable” for them that they would be forced to quit. Most of the employees and five of the executive management team were “friends” on Facebook and had full access to all the derogatory posts. Over a period of 45 days, Facebook analytics reveal that 4 of the 5 managers were online on Facebook over 30 times per user (based on registered logins). However, it is not confirmed if any viewed the objectors’ posts as there was no confirmed “likes” by management of the comments. Employee use of Facebook over that same period, on the contrary, reveals that at least 10 employee co-workers “liked” at least three of the objector comments.
By September, 3 of the LGBTQ employees quit their jobs. These three were support staff. When they quit, they did not explicitly inform the executive manager in charge of HR about their reasons for quitting. However, they did each state in their exit interview with this HR manager that the workplace environment had become “uncomfortable and unsupportive”. The HR manager is one of the executive “friends” on Facebook who was online during the 45 day window noted previously. It is not clear whether he saw the Facebook campaign of the objectors or not.
The objectors continued their campaign on Facebook from work stations at JB Interiors until early November 2019 when they were served at work a summons and complaint by the six LGBTQ employee targets. The complaint also named the company and the executive management team as defendants. Simultaneously, the EEOC filed suit against the company for gender discrimination under Title VII.
The executive management team immediately suspended the five objectors until an internal investigation could be conducted. All employee access to Internet Life Balance was shut down. At this point, no action had been taken at all regarding the original request made some 5 month prior to modify the employee handbook to include LGBTQ status as a protected class. The task was delegated to the HR manager, but he had been consumed with other projects and when asked stated that he simply had not yet had time to get started on consideration of the request or even time to talk to company counsel about it.
The complaint filed by the LGBTQ employees alleges claims against the five objectors for defamation, invasion of privacy and intentional infliction of emotional distress. It alleges claims against the company and the executive management team based on respondeat superior for the actions of the objectors; negligent supervision; and sexual harassment.
The objectors settled their cases with the plaintiffs confidentially. You are not to be concerned with analyzing this case. However, the case against JB Interiors and the executive management team is proceeding, and as of today the Company has filed a motion to dismiss all three claims alleging that the plaintiffs have not presented enough evidence to support legal causes of action. You are the judge hearing this motion. Please provide an IRAC analysis for each claim (respondent superior, negligent supervision and sexual harassment) against the Company. Use the facts presented here as you deem relevant to decide if you will grant the Company’s motion, or allow the plaintiffs’ case to proceed to trial.