An Eye-Opening Termination Of A Former Lingerie Model

Cozen O'Connor
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A former lingerie model turned high school guidance counselor has sued the New York City Department of Education (“DOE”) for discrimination and wrongful termination after being fired when Internet photos surfaced of the scantily-clad guidance counsel from years ago. Stripped down to its bare essentials, the case here is not completely uncommon, yet the factual underpinnings are quite revealing of another cautionary tale for employers who make decisions based on conduct that they frown upon.

According to news reports, Tiffany Webb worked for the DOE for twelve years, having started as a teacher long after she modeled undergarments in her late teens. An otherwise benign employment history became a stimulating exposé after a student apparently showed photos of Ms. Webb to the school principal. Ms. Webb contended that the Internet photos were altered and unauthorized, but nevertheless a committee formed by the Schools Chancellor found by a 2-1 majority that “[t]he inappropriate photos were accessible to impressionable adolescents . . . and [t]hat behavior has a potentially adverse influence on her ability to counsel students and be regarded as a role model.”

Employer Take Away: What should you as an employer take away from this development?

Many times, you don’t particularly care for something one of your employees has said or done. Often times, it is ok to act on that preference when your company seeks to promote legitimate business concerns, but sometimes your action can be deemed unlawful. Setting Ms. Webb’s termination under the bright lights of our analysis, there are a few questions that your company should ask in order to avoid a booby trap for the unwary:

            1.         Have you considered whether the source of your information (through social media or otherwise) has actually checked out, and there is a reasonable likelihood that it is what it purports to be?

            2.         Have you considered whether adverse action would violate laws governing decisions based on an employee’s prior criminal history?

            3.         Have you considered whether adverse action would violate laws prohibiting decisions based on an employee engaging in lawful activity that is off your company’s premises, and not during working time?

            4.         Have you considered whether the employee’s conduct constitutes protected activity engaged in concert with other co-workers about the terms and conditions of your workplace?

            5.         Have you determined whether adverse action is causally linked (temporally or proximately) to a complaint made about protected conduct?

            6.         Are you acting in accordance with a truly legitimate business interest, and in a manner that is consistent with past decisions made about other similarly-situated employees?

Without giving ample consideration to these and other relevant questions, a judge or jury may very well see right through your employment decision and hold your company liable for alleged wrongdoing.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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