There is no question that the use of social media by employers and employees is a hot topic. Legislatures across theUSare considering whether employers should be allowed to demand access to employee and prospective employee’s facebook pages and other personal media, and employers are struggling to control employee abuse of social media. A California Court of Appeals recently addressed the issue of employer liability for harassment and disability discrimination where a large part of the evidence of harassment and discrimination consisted of blog posts by the plaintiff’s co-workers.
While the decision is unpublished, the Court’s analysis provides some useful guidance for employers. In Espinoza v. County of Orange, [add link: 26 Am. Disabilities Cas. (BNA) 31 (Ct. App. 4th Dist. 2012), the plaintiff sued his employer underCalifornia’s statutes prohibiting harassment based on disability. Some of the harassment consisted of blog postings by co-workers. The employee’s supervisors were aware of the two blogs at issue and undertook to determine whether the blogs were accessed from office computers. The employer also sent an e-mail to all employees notifying them that the blog postings were against the employer’s policies and blocked some access to the blogs from work computers. Although the plaintiff employee notified HR of the identity of the individuals who were posting, the employer did not interview or talk to any of identified individuals, and HR did not follow-up and interview the plaintiff.
At trial, a jury returned a verdict for the plaintiff finding that the employer was liable for the harassment. The jury awarded the plaintiff over $820,000 in damages. On appeal, the employer argued that the blog postings should not have been considered as evidence of harassment because the conduct did not occur at work. The California Court of Appeals disagreed because underCalifornialaw, the employer’s liability is not based on what plaintiff’s co-workers did, it is based on the employer’s response – or lack of appropriate response – after it learned about the harassment, including the blog posts by the plaintiff’s co-workers. This is similar to Title VII which looks at whether an employer exercises “reasonable care” to correct harassment which includes: having a complaint procedure in place; following the procedure upon receipt of a complaint; undertaking an unbiased investigation of the complaint; and imposing appropriate discipline if a complaint is substantiated by the investigation.
The Court found that the employer’s response to the plaintiff’s complaint about the blog postings was wholly insufficient. While the employer had an anti-harassment policy, conducted training, and sent e-mails telling employees that the blog posts violated the employer’s policies, the Court noted that the blog continued for eight weeks after the employer began investigating and that although the employer blocked generic logins, it did not block access to the blog entirely, which it had the ability to do. The employer also failed to interview any of the alleged bloggers or the plaintiff.
Employers need not monitor their employees’ on-line lives. However, once aware of employee behavior in cyberspace that may constitute harassment or discrimination, employers must respond appropriately including: a full and unbiased investigation, taking control of employee access to computers from company owned or controlled equipment; and imposing discipline where warranted.