The popular dating app Tinder has been in the news recently because of a sexual harassment lawsuit (filed in state court in California) alleging sexual harassment, discrimination and retaliation, among other things. Potential and current clients almost always ask if they have a strong case. There are many factors that go into whether an employment client has a strong case and whether it is a case that we can accept. By “good” case, I mean a case that an attorney would be likely to accept because, taking the client's version of events and available information prior to actually filing a lawsuit, the case appears that it would survive dismissal prior to trial and/or has a strong likelihood of settlement.
5 Reasons Why the Tinder Plaintiff Has a Good Case
- Written Evidence: The Tinder plaintiff is able to attach text messages from the culprits accused of sexual harrassment, discrimination, and retaliation. Written evidence is rare. It is important that if you, as an employee, have inappropriate emails or text messages in your possession, you retain them.
- Complaints: The law generally requires an employee who is the victim of harassment to complain. Here, the Tinder plaintiff complained to the CEO of the company about the actions of her harasser.
- Harassment by a Supervisor: The law is more favorable to employees when they are harassed by a supervisor. If the individual harassing you is a supervisor (generally meaning they have hiring and firing authority or the ability to affect the terms and conditions of your employment) liability is often imputed to the employer. While there are of course caveats to this and defenses that the employer may rely on, a case is stronger when the harasser is a supervisor and not a mere co-worker.
- Discriminatory Animus: Discrimination cases require a showing of animus. So an employee-plaintiff must be able to show that the discrimination and adverse employment action (such as being fired) occurred because of hostility (animus) to their protected status (in the Tinder case, gender). It is always helpful if a plaintiff has specific proof of hostility to his or her protected status. In the Tinder case, the plaintiff specifically alleged that she was told her co-founder status in the company was being removed because “she is a girl.” The plaintiff also had proof that out of all of the co-founders she was the only woman and the only one to have her co-founder status removed.
- The Company Suspended the Harasser: After the Tinder lawsuit was filed and because of the inappropriate text messages attached to the complaint, the harasser was suspended. While the company may attempt to rely on that fact in support of its inevitable claim that it takes sexual harassment seriously, they nonetheless admitted that something inappropriate occurred. This is rare. It is more common for an employer to deny deny deny and refuse to take any responsibility or suspend any culprits during the pendency of a lawsuit.
Disclaimer: the Tinder facts are drawn from the face of the complaint and in the exhibits attached to the complaint; no matter how strong a case may seem at first blush, the law is generally employer-favorable and there is always the possibility that new evidence will come to light that will weaken the merits of the case.
Giovanna A. D'Orazio by Giovanna A. D'Orazio |
Giovanna practices employment, land use, commercial, civil and personal injury law at D'Orazio Peterson