As if employers didn’t have enough trouble preventing harassment in the workplace, now employees have newer, faster, more subtle ways to send and receive offensive comments, photos, and videos. From smartphones to social networking sites to instant sharing and Tweeted updates, the potential for employees to make offense and take offense has increased along with new technologies.
While employees may dismiss a message as “just a joke,” employers know that employees often disagree about where joking ends and harassment begins. And an employee who claims harassment has a running record (aka great evidence) conveniently located on whatever electronic device, personal or otherwise, received the offensive messages.
Some of the challenges employers are facing include:
- Virtual harassment—harassment through a social media site, for example, “friending” a co-worker on Facebook and then sending offensive messages (or repeated requests for a date)
- Textual harassment—harassing, intimidating, or inappropriate text messages
- Sexting—sexually explicit or offensive photos or videos sent via electronic media
- Cyberstalking—harassing an employee by following him or her on blogs, posts, and social websites
In addition, employees may not understand that offensive electronic communications affecting the workplace can constitute workplace harassment—regardless of whose electronic device is used. Many employees may believe that off-duty conduct outside the workplace is unrelated to an employer’s responsibility to maintain a workplace free of discrimination.
There are recent cases that highlight these challenges:
- Earlier this year, an employer paid $2.3 million to settle a lawsuit brought by the EEOC alleging sexual harassment and retaliation. A store manager allegedly sent sexually charged text messages to an employee who reported the harassment to her direct supervisor. The supervisor was fired after he reported the harassment to the company’s legal department.
- A court upheld a $1.6 million verdict in favor of an employee with a disability who was harassed by co-workers on a blog outside the workplace. The employee reported the harassment but the employer failed to take effective action. The employer was found liable because it was aware of the harassment and didn’t stop it.
So what can employers do to prevent workplace harassment in all its new electronic forms?
Employers should create a clear social media policy that addresses electronic communications and then make sure employees understand what the policy means and how it affects their communications. In addition to covering electronic communications and prohibiting harassment, the policy should also notify employees that there is no expectation of privacy in electronic communications on the employer’s communication systems or in their electronic communications with other employees, regardless of whose electronic communication device is used.
An employer may also want to add a section on electronic communications to its existing policy against harassment and retaliation to remind employees that all forms of harassment are unlawful.
Training should reflect the terms of an employer’s policies, emphasizing that inappropriate or offensive conduct is always unacceptable, regardless of the method of delivery. If a comment is offensive when communicated face-to-face, it’s offensive when posted, texted, or otherwise communicated via electronic media.
In harassment prevention training, it’s always important to communicate the employer’s policy on professional conduct in the workplace which typically prohibits inappropriate conduct that may not reach the level of unlawful harassment. It’s also a good opportunity to make sure employees understand the procedure for reporting harassment and reinforcing the employer’s policy against retaliation.
Joan S. Farrell, JD, is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell has over 10 years’ combined experience in employment law and human resources management. She worked as in-house counsel for an employer that had subsidiaries in several states. Her experience includes representing management in administrative matters and discrimination claims, and providing counseling on employment practices. Ms. Farrell received her law degree from Pace University School of Law.