Employers need to be aware that social media creates yet another forum where co-workers can engage in inappropriate and harassing conduct.
Several courts have concluded that employers have an obligation to prevent co-worker harassment when the employer is aware that such conduct is taking place in the workplace and in settings related to the workplace—
including online settings.
The Importance of Timely Action
In a case filed in federal court in Puerto Rico, the plaintiff asserted various allegations against her employer for a hostile work environment. Specifically, she said that her co-worker made a racially derogatory comment about her on his Facebook page. The co-worker’s conduct on Facebook was reported to the employer, who investigated the complaint and blocked access to Facebook from all of its office computers. The court ultimately dismissed the plaintiff’s claim based in part on its conclusion that the employer took prompt and appropriate action to address and prevent the
alleged harassment.
Next, in a case filed in California, a plaintiff sued for harassment based on disability after his co-workers made repeated harassing and derogatory comments about his physical disability on a blog. The blog was created by a co-worker. When the employer learned about the blog, its investigation determined that several employees were accessing the blog from the employer’s computers using generic login passwords and identifiable names.
The employer blocked access through the use of generic passwords, but employees could still access the blog using specific login names. The court noted that while the employer was able to completely block access to the website, it did not do so until two months after it learned of the blog.
At trial, the jury found for the plaintiff and awarded over $800,000 in damages. After the trial, the employer argued that the court should not have admitted the blog posts as evidence because the blog was separate from the workplace, and was non-workplace activity that was not dictated or authorized by the employer.
The court rejected this argument based on evidence showing that employees had accessed the blog from the workplace, that the postings referred to the plaintiff, and that the postings discussed work-related issues. The court stated that an employer can be liable for actions of nonsupervisory employees if it was or should have been aware of those actions and failed to take remedial action. The court concluded that the employer was liable for failing to take prompt corrective action.
Does Your ‘Workplace’ Extend to the Web?
In another case, the New Jersey Supreme Court allowed a plaintiff to proceed with a hostile work environment claim based on co-workers’ harassing comments posted to an online employee bulletin.
In that case, the employee was a female pilot for Continental Airlines. She alleged that, after she had filed a sex discrimination claim against her employer, her co-workers posted derogatory and insulting comments about her on an online employee bulletin board approved by Continental Airlines. The online employee bulletin board was accessible to employees and contained posted messages or threads. Employees were required to access the bulletin to obtain work schedules and other work-related information.
In addressing the plaintiff’s claim, the court determined that the online bulletin was akin to an “old-fashioned” physical bulletin board found in the workplace. The employer’s liability would depend on whether the bulletin board was such an integral part of the workplace that harassment occurring on the online bulletin board should be regarded as a continuation of the harassment that existed in the workplace.
The court concluded that although employers do not have an obligation to monitor private employee communications, employers do have a duty to stop harassment when the employer has reason to know that such conduct is taking place at the workplace and in settings that are related to the workplace.
What Should Employers Do?
Employers’ policies should make clear that all forms of harassing and discriminatory conduct, including such conduct on social media and in other electronic communications, is prohibited. Co-workers’ harassing comments—whether in person, on Facebook or in a text—can constitute actionable harassment.
Although the best approach in handling a harassment complaint will depend on the specific facts of each case, employers need to be aware that employees’ conduct online can create liability for harassment in the workplace.
