Public Shaming of a Job Applicant: Could It Kickass?

Kickass Masterminds posted on its Twitter account a “PSA” that shamed an applicant who apparently appended a photo of herself in a bikini. Here is what Kickass reportedly posted:

“PSA (because I know some of you applicants are looking at this) do not share your social media with a potential employer if this is the kind of content on it. I am looking for a professional marketer - not a bikini model.”

Kickass added this: “Go on with your bad self and do whatever in private. But this is not doing you any favors in finding a professional job.”

The applicant is Emily Clow. Does she legal recourse?

Probably. 

Several torts (general “civil wrongs”) apply to these situations.

The obvious one is defamation. It usually requires proof of (1) a communication, (2) falsity, (3) publication, and (4) damages that result from publication.

Of course, it's questionable whether Kickass said anything false. Ms. Clow did present herself in a bikini-photo, apparently. 

But she can sue under a related tort, called false light. She has been portrayed not untruthfully but misleadingly in a false light. This statement is especially problematical: “Go on with your bad self and do whatever in private. But this is not doing you any favors in finding a professional job.”
Kickass, what are you implying about Ms. Clow and how does her personal life matter to you as an employer?

Another probable tort claim is emotional distress. This is a tougher lift for plaintiffs, who need to show that the defendant's conduct was “extreme and outrageous,” usually defined as beyond the norms of decency.

What about damages?

Everyday that Ms. Clow is unemployed or employed in a job below her qualifications, Kickass has exposure.

These torts include damages for (a) economic, and (b) noneconomic injuries.

Noneconomic injuries include pain and suffering, mental anguish, loss of enjoyment of life, and anxiety. Courts generally allow proof of appetite loss, lack of energy, sexual dysfunction, mood swings, medical issues, loss of an intimate relationship, and/or sleep disturbances.

Kickass’s posts were smug and self-righteous. In the end, Ms. Clow might kick their butt.