Turns Out It's Not Sex Discrimination To Get Fired For Looking At Porn Sites

from the who-knew? dept

Eric Goldman alerts us to an appeals court ruling finding against a guy who claims that his firing was gender discrimination after the hospital he worked for found that he had been surfing porn and "hacking" sites. The guy's entire case seems like a huge stretch. In the department he worked for, there was one computer shared between 7 people, with this guy, David Farr, being the only guy. While each employee had a separate login, apparently whoever logged in first usually just stayed logged in all day. When it was discovered that a number of porn sites were listed in the favorites, the hospital did what sounds like a decently thorough investigation, and found it quite likely that it was Farr who visited the sites (one of the days the activity occurred was a Saturday where he was the only one there). He eventually admitted to visiting 17 of the 31 sites in question, but then later claimed that he had visited sites that installed malware on the computer that added the bookmarks to the porn sites. But then... when confronted again, admitted to visiting the 17 sites.

He claimed that it was gender discrimination, since he was the only guy, there was an automatic assumption that he had visited the porn sites. Yet, the court points out that (1) he failed to show that a female employee wouldn't have been treated in the same way and (2) the hospital was incredibly thorough in investigating the issue, especially after he denied visiting some of the sites. They didn't just jump to a conclusion and fire him, but apparently went into quite a lot of detail in making sure that he had actually been visiting those sites. On top of that, the court notes that his employment was at-will, so the hospital had every right to fire him. It's difficult to see how he thought a gender discrimination claim would get very far given that he admitted to visiting some of the sites, as well as the amount of investigation that was done by the hospital. But, these days, people seem to think that anything they don't like that happens to them must be against the law.

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Appeals Court Says Roommates.com Doesn't Qualify For Safe Harbors

from the uh-oh dept

Lots of folks were surprised last year when the 9th Circuit court ruled that Roommates.com didn't qualify for section 230 safe harbors. Section 230 of the CDA, as you hopefully know, protects service providers from the actions of their users, and the ruling last May would potentially limit those protections. Until then, courts had generally interpreted the service provider clause quite broadly (reasonably so, in my opinion). Last fall, the court agreed to ditch the original ruling and rehear the case with an 11 judge panel. While that was happening, in a similar case against Craigslist, the 7th Circuit found that Craigslist was covered by the safe harbors and was not responsible for discriminatory housing posts.

However, it looks like the full panel on the 9th Circuit has decided to buck most other courts on this matter and is siding with the original ruling saying that Roommates.com is not immune from liability for discriminatory postings by its users. The reasoning seems to follow along the lines of the earlier ruling, that Roommates.com gave up its immunity by putting checkboxes and pulldown menus that allowed users to choose discriminatory options -- thus, actively taking part. In fact, the ruling makes it clear that by placing these options and effectively asking discriminatory questions, Roommates.com goes past being a service provider and becomes a content creator itself. Three out of eleven judges disagreed and dissented, claiming that this goes against the basic language of section 230. What's clear is that this issue isn't done yet, and there are going to be a lot more cases coming down the road (and some may target this court, seeing it as more "favorable" to these types of cases).

While it's always a little worrisome when a court tries to limit the coverage of these safe harbors, you can understand where the majority opinion comes from. Roommates.com isn't a neutral party, it claims, because: "Roommate does not merely provide a framework that could be utilized for proper or improper purposes; rather, Roommate’s work in developing the discriminatory questions, discriminatory answers and discriminatory search mechanism is directly related to the alleged illegality of the site." However, the dissenting opinion makes some very good points, noting that the majority seems to mix and match two separate issues: (1) is there discrimination and (2) is Roommates.com liable for any discrimination -- and as such, finds the discrimination (which isn't what the lawsuit was about) and then assigns the blame to Roommates.com. Basically, the dissent is saying that the majority got blinded by the discrimination (without making a legal determination if there really is discrimination) and let that confuse them into assigning liability where it doesn't belong.

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Once Again, Craigslist Isn't Liable For Discriminatory Posts

from the can't-sue-the-messenger dept

A little over two years ago, a civil rights group sued Craigslist, blaming the company for the fact that some of its users were posting discriminatory housing/roommate offers -- which could violate the Fair Housing Act of 1968. However, as plenty of people noted at the time, section 230 of the CDA protects Craigslist as a service provider, not a publisher, meaning that Craigslist isn't the party to sue here. The group could certainly go after the original posters for violating the law, but Craigslist is just the service provider and has no say in the content. That seemed obvious right from the beginning, but the civil rights group pushed forward and lost its case. The judge explained all of this to the lawyers... who filed an appeal anyway. The appeals court has now ruled as well, and (no surprise here) affirmed the original ruling, saying that Craigslist is a service provider, not a publisher, and therefore is not liable for discriminatory posts. As Eric Goldman points out, the ruling (again) makes this quite clear:

"Using the remarkably candid postings on craigslist, the Lawyers' Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination....It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party's plan to engage in unlawful discrimination."

What will be interesting, however, is to see what happens now in a very similar lawsuit involving Roommates.com that is currently being reviewed in a different Circuit. Hopefully the court there comes to a similar conclusion and we stop getting these types of incorrectly targeted lawsuits.

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Up Is Down, Black Is White, Not Discriminating Against Internet Traffic Is Discriminating

from the explain-please? dept

While a bunch of consumer groups have come out in favor of keeping the internet neutral, a bunch of civil rights groups are taking the opposing view. However, the reasoning is hard to follow, as it doesn't make very much sense: "The effective prioritization of P2P traffic would represent an altogether new type of 'back of the bus' second-class status for our speech on broadband networks -- and ought to be resoundingly rejected." Actually, it's the use of traffic management that would create a second-class status for some traffic. Preserving network neutrality does exactly the opposite -- making sure all packets are treated equally. What the groups seem to be saying -- incorrectly -- is that by not using traffic management, P2P traffic is prioritized. That's not true. It's treated equally with any other traffic.

It's completely fair to argue that treating all packets equally doesn't make sense -- as many have. However, to claim that treating all packets equally somehow makes some traffic "second-class" is an outright misrepresentation. No one denies (perhaps other than these civil rights groups) that traffic management is all about officially making certain kinds of traffic second-class. They just argue that this is necessary and reasonable. The filing by these civil rights groups is simply backwards.

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Circuit Court Ditches Ruling Opening Roommates.com Up To Blame For Ads Posted By Users

from the let's-rethink-this-a-moment dept

Earlier this year, plenty of people were quite surprised by a ruling of the 9th Circuit that seemed to go against what almost every other court had said about the safe harbors provided to internet service providers for the actions of their users under section 230 of the Communications Decency Act. The case involved the website Roommates.com, which allows people (not surprisingly) to put up ads looking for roommates. The problem (according to the lawsuit) is that some people posting roommate ads included requests that could potentially violate the Fair Housing Act. Where the ruling got tricky was that it basically said section 230 protections existed only where structured data wasn't collected. However since Roommates.com offered both pulldown boxes and allowed users to search on certain characteristics, it was no longer protected by section 230. But this potentially opened up a ton of problems and had a variety of legal experts scratching their heads. So, it's no surprise that they're happy to see the 9th Circuit now toss that original ruling out, to be reheard by an 11 judge panel. No matter when that happens, the original ruling can no longer be used as a precedent. This is a good thing, as the safe harbors protecting service providers from the actions of their users is certainly a good thing -- and the net result if this ruling did stand is that fewer sites would be willing to accept any kind of structured data, for fear of losing their protection. Also, considering how confused various legal experts were after the original ruling, you have to figure that it's at least a good idea to take a second look and rethink or, at the very least, clarify the original ruling.

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