EEOC and Social Media: The Equal Employment Opportunity Commission (EEOC)’s most recent Enforcement Guidance on Harassment in the Workplace threaded the needle on when social media outside the workplace rises to a hostile workplace:
Conduct that can affect the terms and conditions of employment, even if it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace… .However, postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.
How can an employer tell when social media posts become a workplace problem? The 9th Circuit recently released a helpful decision, employing the updated guidelines. In this case, the social media posts in question were sexually offensive and specifically targeted a female staff psychologist at a prison. The Instagram account was followed by other employees, who could view, comment, share and “like” the posts. These facts matter: an employee was specifically targeted, the posts were offensive and others in the workplace had access to the posts. Initially, management responded that the posts were not a problem because they did not happen at the workplace. The prison eventually acknowledged the posts did violate its Anti-Harassment Policy and ordered the employee to stop. He did not stop and was not disciplined.
After leaving her position and suing, the lower court dismissed the case, in part because the Instagram posts did not occur in the physical workplace. The Ninth Circuit reversed that decision, warning that employers should reject the notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the “ubiquity of social media.”
The takeaways? Dust off your Handbook, including the Social Media Policy. Ensure employees are familiar with your policy. Remember, that even the best written policy is meaningless if supervisors do not employ it. Consider training in Anti-Harassment: what it looks like inside and outside the workplace. Finally, do not fail to act on a complaint because the social media did not happen at work or on a work account.
Questions? We can help.