When Online Trolls Cost You Your Job: Did Nintendo Fail to Protect its Employee?

 

Rodney Employment Law Nintendo

There has been a lot of buzz recently about Nintendo’s decision to terminate its employee Alison Rapp.  Rapp was a product manager for Nintendo who held spokesperson status and regularly represented the company on social media.

Recently, Rapp was targeted by online trolls and harassed with respect to Nintendo’s decision to tone down its sexualization of women in games.  Rapp became the scapegoat for Nintendo’s decision and the angry gaming community violently harassed her as a result.  The trolls dug up Rapp’s Internet history and private life, and went so far as to petition for the termination of Rapp’s employment with Nintendo.

Nintendo ultimately gave in to the trolls, first revoking Rapp’s status as spokesperson for the company and then terminating her employment.

In its termination of Rapp, Nintendo denied that the social media events leading up to her termination played a part in Nintendo’s decision and relied on the fact that Rapp held a second job anonymously as the basis for her termination.  Here is what Nintendo said in this regard:

Alison Rapp was terminated due to violation of an internal company policy involving holding a second job in conflict with Nintendo’s corporate culture… Though Ms. Rapp’s termination follows her being the subject of criticism from certain groups via social media several weeks ago, the two are absolutely not related.”

Do you buy it?  Rapp has claimed that Nintendo allows its employees to moonlight and nothing in Nintendo’s policies prohibits such.  In light of all of the events leading up to Rapp’s termination, we find Nintendo’s position questionable – i.e. that the trolls and the online controversy had nothing to do with its decision.

What does all of this mean for employers?

It is true that employees who misrepresent the organizations they work for via harmful behaviour online or otherwise may be terminated, at times with cause.  Think, Justine Sacco who was fired for cause from IAC after she tweeted cutting and racist jokes or the Mr. Lube employee who was fired after he tweeted that he needed “a spliff or two” to help him get through his shift.  Our blog on What You Do Outside of Work Could Cost You Your Job covers this issue further.  There is no question employees must mind their conduct both at work and outside work, as it could cost them their jobs!

With that said, the Nintendo case is different.  Nintendo claimed that the decision to terminate Rapp had nothing to do with the online criticism from the gaming groups and was based on her second job i.e. moonlighting and conflict of interest.  More importantly, many would argue that Nintendo failed Rapp in the sense that it did not carry out its duty to protect her from the troll harassment against her.

As Carrie Goldberg, a board member at the Cyber Civil Rights Initiative put it, Nintendo’s actions may be seen as an acquiescence to the gender-based harassment against Rapp, which raises issues related to discrimination based on sex.   She wrote, “It is clear that Ms. Rapp was the victim of tremendous cyber-harassment and threats, many of them gendered and sexually violent… As a moral – and possibly legal issue – her employer has a heightened responsibility to protect her.”

Lessons for Employers:

  1. Be mindful of your obligations – health & safety, human rights, good faith:

Employers should learn from the Nintendo case that decisions to terminate should be thoughtful.  Before terminating an employee, employers should consider their obligations with respect to protecting employees from workplace harassment and violence, along with Human Rights obligations to ensure employees are protected from discrimination.  Employers should always carry terminations out in good faith and avoid citing disingenuous reasons for termination.

  1. Always investigate:

This case is also a reminder that employers should investigate thoroughly.  Employers have an obligation to afford employees due process.  While Nintendo may have interpreted these events as negative media coverage for the company stemming from a “problem employee”, it was Nintendo’s responsibility to dig deeper.  In its inquiry, the company may have realized its responsibility to protect its employee instead of cutting her loose.

  1. Ask the experts:

Not sure how to handle a tricky termination? Get advice.  Reach out to workplace experts, legal or HR to ensure you are handling the termination properly to minimize future risk and liability.

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