When an employee has been fired for sexual harassment, what degree of proof is required to show that the employer's true motivation was discriminatory? And is a single click on the internet enough to justify a warrant to search a person's home?

Those are two questions the U.S. Court of Appeals for the Fourth Circuit answered recently in Matias v. Elon University and U.S. v. Nikolai Bosyk. The Fourth Circuit rulings have implications for employers, law enforcement agencies, and really anyone who uses the internet. Those implications are especially important in light of the #MeToo movement and "this brave new world of digital technology," as one of the Fourth Circuit judges put it.

Matias v. Elon University

It's not unusual for an employee terminated or disciplined for workplace harassment to, in turn, file a charge with the Equal Employment Opportunity Commission, alleging that the employer's reasons for the move were pretext for a discriminatory motivation. As you would expect, in most situations, the EEOC or federal courts require a high degree of proof in order to support the accused harasser's claims against the employer.

The Fourth Circuit Court of Appeals continued this trend on July 22, quickly affirming dismissal of a race discrimination claim filed by a custodial employee terminated for sexually harassing a co-worker. In Matias v. Elon University, the plaintiff claimed that his employer failed to promote him and later terminated his employment because of his Mexican heritage. He sued under Title VII, as well as Section 1981. To support his failure-to-promote claim, the plaintiff alleged some anti-Mexican statements made by the decision maker. The Fourth Circuit found that these statements were isolated and sufficiently removed in time from the promotion decision to avoid any reasonable connection.

In terms of the termination claim, the plaintiff pointed out a white co-worker who he alleged engaged in sexual harassment yet remained employed by the university. The Fourth Circuit disagreed with the comparison, noting the difference between the severity of the alleged harassment justified the employer taking different remedial actions. "Specifically, not only was HR unable to confirm the complaints lodged against the comparator," the court wrote in its per curiam opinion, "but also the comparator, unlike Matias, was never accused of forcing himself on a coworker." The court also discounted the plaintiff's claim that his supervisor manipulated the investigation of the harassment claims to ensure his termination.

In addition, the Fourth Circuit emphasized key differences from Staub v. Proctor Hospital, a U.S. Supreme Court ruling from 2011 on which Matias heavily relied. Unlike in that case, the court said there is "no evidence" suggesting Matias' supervisor "manufactured the kissing incident, relayed the complaint out of racial animus, or otherwise influenced HR's investigation."

The EEOC and federal courts remain understandably reluctant to punish employers that investigate and take strong remedial action in response to sexual and other unlawful harassment complaints. While accused harassers can allege improper motivations behind the employers' decisions, they usually have a tough time convincing federal agencies and courts that they are the real victims.

U.S. v. Nikolai Bosyk

Federal courts are increasingly dealing with the intersection of technology, privacy and crime. We now live in a world where "many crimes are committed with just a few clicks of a mouse—including the very serious crime of downloading child pornography," the Fourth Circuit noted in U.S. v. Nikolai Bosyk on August 1.

The facts of the case are simple according to the court's 2-1 majority. A link appeared on a secretive online message board with images and a description that made it clear: clicking the link would take the user to child pornography. The same day, an IP address associated with Nikolai Bosyk's house clicked the link. The court ruled the government had probable cause to obtain a search warrant based on those facts.

Bosyk and the Electronic Frontier Foundation, which filed an amicus brief in support of him, had argued that a single click of a URL could not justify searching someone's home. The majority said the "critical fact" in the case was the timing of that click on the same day the link "appeared on a website whose purpose was to advertise and distribute child pornography to its limited membership."

"In short, although the search relied on a 'single click' of an internet link, the click was to a video of child pornography in circumstances suggesting the person behind that click plausibly knew about and sought out that content," the majority wrote. "We think the magistrate judge therefore had a substantial basis for concluding that searching Bosyk's address would uncover evidence of wrongdoing."

Judge James Wynn Jr. wrote a 70-page dissent, saying the majority's holding "clings to analog technology from the internet dark age, uses unsupported inferences, and eviscerates constitutional rights for this brave new world of digital technology."

Judge Wynn agreed with the majority that "even a 'single click' of an internet link to download child pornography can provide probable cause to support a search warrant if the facts set forth in the warrant application establish that 'the person behind that click plausibly knew about and sought out that content.'" But he argues that is not the case here, as the affidavit the magistrate based the warrant on did not assert (a) the defendant was a member of the secretive online message board, (b) the defendant ever visited the message board, or (c) what time the post first appeared on the message board. Although the government later told the court that the post appeared before Bosyk's click, Judge Wynn says the omission of that in the affidavit calls the majority's "critical fact" into question.

The dissent also contends the ruling puts the Fourth Circuit at odds with the Second and Ninth Circuits, which have required "the government to adduce additional facts—over and above the single click of a URL that provides for download of child pornography—to establish probable cause to search a residence associated with the IP address responsible for the click." The majority counters that the cases from the other circuits "differ factually from this one in meaningful respects, and therefore aren't useful precedents." Even so, the majority says the timing of the click is the type of "additional fact" the other circuits have emphasized.

This may not be the Fourth Circuit's last word on the issue, as the attorney representing Bosyk has indicated he plans to appeal the ruling en banc.

Takeaways

Employers in the Carolinas, the Virginias and Maryland should know that their federal appeals court fits in with the broader trend of applying skepticism when a terminated employee accused of serious misconduct such as harassment, later pursues a discrimination claim. Having a standard process to investigate sexual harassment claims and document their results will further strengthen an employer's case if they are subject to a discrimination or retaliation action.

Law enforcement agencies in the region will now have an easier time attaining search warrants based on what people click on the internet. However, a single click is unlikely to be enough evidence, as the majority, the dissent and other circuit courts are in agreement that there must be additional facts to support probable clause. How courts measure and weigh those facts may be a moving target as digital technology—and judges' understanding of it—evolves.

Melanie Dubis and Jonathan Crotty are partners at Parker Poe in North Carolina. Dubis leads the firm's Business Litigation Team, and Crotty leads the firm's Employment & Labor Team.

Instant Insights /

Two recent court decisions every employer (and every internet user) should know

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