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Virtual Harassment in the Digital Workplace
Employers in the digital age need to understand and appreciate that communications through the internet, e-mail, instant messaging and text messaging can constitute actionable harassment in the work place. This may even hold true when an employee makes harassing comments while on his own time.In addition to e-mail and the internet, which employers have had to keep an eye on for some time, social media websites, such as Facebook and Twitter, have only made things more complicated for employers.
Facebook is a website that allows a user to post pictures, messages, links and other similar content to a page dedicated solely to that user. Typically, a user’s posted content can only be viewed by other individuals who the user has accepted as a virtual “friend.” Once this “virtual friendship” has been established, the two users are free to view and comment upon each other’s posted content. Similarly, Twitter is a website that allows a user to post “tweets” (a brief written message) or other content to a page, again dedicated solely to that user. “Followers” of the user may view the content and choose to reply with posted messages or other content.
A message posted on an employee’s Facebook page or “tweeted” by an employee has the potential to create a harassment claim. Employers should treat all conduct similarly, whether it be person to person or through some digital medium, by applying a uniform anti-harassment policy. Also keep in mind that conduct does not have to be sexually explicit to constitute sexual harassment. For example, a female employee has a male co-worker, who, after overhearing a previous comment she had made to a female co-worker about buying a new dress, sent her a message on her Facebook page. The male co-worker tells the female employee that he cannot wait to see her in the dress and he is sure she “will look amazing in it.” Although the female employee feels uncomfortable with this remark, she does not report the conduct, but tells the male co-worker that she thought the comment was inappropriate.
The male co-worker continues to send Facebook messages that the female employee feels are inappropriate, but are not sexually explicit on their face. The female employee finally “de-friends” the male co-worker on Facebook (ends their virtual friendship) and reports his conduct to human resources. All of the messages were sent by the male co-worker outside of work hours.
At this point, human resources must conduct a full investigation under its anti-harassment policy. Although the conduct took place outside of work and through a social media website, the employer still has an obligation to determine whether or not harassment occurred. If the employer determines after the investigation that harassment occurred, it must discipline the male co-worker, or it may face liability for failing to do so.
In order to prevent a situation like the above, employers should consider adopting a social media policy, and if they have not done so already, an internet and e-mail usage policy. The social media policy should express the employer’s view, which respects employees’ right to express personal opinions when using personal social media websites and does not retaliate or discriminate against employees who use social media for lawful purposes, but rather discourages employees from posting messages that are detrimental to the employer and violate general professional conduct. Furthermore, the social media policy should directly state that employees must not use social media to harass, threaten, defame, libel, embarrass, disrespect, or offend co-workers, customers and the like.
While an employer cannot control what an employee chooses to post on their own social media site, an employer can discipline an employee for posting inappropriate messages that are harassing or otherwise casting the employer in a poor light. If you would like to discuss the issues surrounding the proliferation of social media and/or develop a social media policy, please do not hesitate to contact Ryan Neumeyer or Lynn Schonberg for more information.