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Social Media Harassment in the Workplace: Employer Liability

How Employers Can Be Held Liable for Workplace Social Media Harassment

By Mariah Collins, SHRM-CP on Jan 29, 2024
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In our digital era, the influence of social media is inescapable. It has revolutionized the way we communicate, stay informed and even shop. In the United States alone, over 308 million individuals engage in social media, averaging 2.25 hours daily. This makes it one of the most dominant activities in our online world.

However, the integration of social media into our daily lives has brought with it a blurring of lines between our work and personal spaces. In this 'always-on' culture, it's commonplace to find our professional and personal networks converging on platforms like Facebook, X and Instagram. But there's a darker aspect to this interconnectedness – the rise of social media harassment.

RELATED: Q&A Sexual Harassment Outside the Workplace - Is the Employer Responsible? >>

Social Media Harassment: A New Frontier for Employer Liability

Social media isn’t just about casual sharing and connecting. When the use of social media by employees crosses the line, what starts as seemingly harmless banter can escalate into serious harassment. The unique challenge with social media online harassment is its digital nature – the evidence of harassment, including messages and screenshots, is often well-documented and undeniable.

This brings us to a crucial issue: employer liability in instances of social media harassment. When employees, using their personal social media accounts, engage in behavior that harasses or discriminates against coworkers or clients, even outside work hours, their employers can find themselves legally accountable.

The courts are increasingly viewing social media as an "extension of the workplace," where employers may be held responsible for maintaining a harassment-free environment, extending beyond the physical office to the digital realm.

As we navigate through the intricacies of social media harassment, we must examine the boundaries of employer liability, the evolving definitions of workplace conduct and the proactive measures necessary for businesses to address this growing concern.

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Cases Illustrating Employer Liability in Social Media Harassment

The legal landscape surrounding social media harassment in the workplace is continually evolving. Here are a few pivotal cases that highlight how employers have been held liable for harassment involving social media, blogs and text messages:

Sexual Harassment and Retaliation: The Case of Fry Electronics

A notable instance of employer liability involved Fry Electronics, which was ordered to pay $2.3 million in a lawsuit filed by the EEOC. The case centered around an assistant store manager who allegedly sent sexually charged text messages to a young employee and invited her to his house for drinks.

When the employee reported this behavior, her direct supervisor, who escalated the complaint, was fired. The EEOC charged the company with harassing a young salesperson and firing the supervisor who stood up for her. While this case involved texting, it extends to social media and may present in the form of direct messages, comments or Snapchat images.

RELATED: Defining Zero Tolerance To Curb Sexual Harassment at Work >>

Threatening Facebook Messages

In the case of Maldonado-Cátala v. Municipality of Naranjito (D. P.R. 2015), reported by SHRM, a municipal EMT alleged an emergency management office director was sexually harassing female employees.

Following his dismissal, the plaintiff started receiving threatening messages on Facebook, traced back to a computer in the municipality's office. The EMT claimed a hostile work environment due to the Facebook messages.

This case underscores that even when harassment occurs through seemingly anonymous social media profiles, if it can be linked back to the workplace or an employee, the employer may be held responsible for creating a hostile work environment.

Blog-Based Harassment: A Precedent-Setting Verdict

Another significant case involved an employee with a disability who was harassed by co-workers on an external blog. Despite reporting the harassment, the employer failed to act. A court upheld a $1.6 million verdict against the employer, highlighting the importance of employer intervention in cases of digital harassment, regardless of whether it occurs directly on social media or other online platforms.

3 Common Types of Social Media Workplace Harassment

Harassment on social media can manifest in various forms, each posing unique challenges to both employees and employers. Understanding these common types is crucial for effectively identifying and addressing them.

Virtual Harassment: Beyond Friend Requests

Social media online harassment includes “friending” a coworker on Facebook or following on Instagram or another channel, then sending offensive messages through a social media app that could be sexual, discriminatory or bullying in nature. Additionally, digital harassment includes leaving inappropriate comments on pictures or repeatedly asking a coworker out on dates. For example, every time Tommy posts a photo on Instagram, Susan always responds by posting comments like “HOT” or “You look so good”.

Despite the shift to remote work, virtual harassment has not diminished; in fact, cyberbullying incidents have risen 57% from 2017-2022. Here are 15 additional statistics about cyberbullying in the workplace >>

Lewd Photos via Snapchat

In 2023, Snapchat had approximately 406 million active daily users worldwide, who generated more than 4 billion Snaps each day. The mobile application has become a popular means for sending sexual photos (or Snaps) because when sent through Snapchat the photos disappear within seconds of being viewed. This creates a false sense of security among users, leading to increased incidents of inappropriate photo sharing in a workplace context.

Cyberstalking: A Persistent Digital Shadow

Cyberstalking occurs when an employee or boss obsessively follows someone across all social media platforms, sometimes even translating into physical stalking. Certain apps, like Snapchat, exacerbate this issue by sharing users' exact locations, leading to increased risks of cyberstalking in the workplace.

It's crucial to understand that social media harassment in the workplace is not confined by traditional work hours. Whether comments or actions are made during or after the workday, if they cause discomfort or a sense of threat to an employee, it constitutes workplace harassment.

RELATED: No Room For Workplace Bullying or Harassment >>

Proactive Strategies to Prevent Social Media Harassment in the Workplace

To effectively tackle harassment on social media, employers need to adopt a range of proactive strategies. These strategies should not only focus on preventing harassment from occurring but also ensure that the workplace environment is conducive to open communication and respect. From establishing clear policies to promoting a culture of inclusivity, each measure plays a critical role in safeguarding employees against digital harassment.

Establish a Clear Social Media Policy

In today's interconnected digital landscape, a well-defined social media policy is vital for every business. This policy should encompass several key aspects to ensure respectful and appropriate online conduct, especially when it involves interactions with or about managers, coworkers or clients.

  • Promote respectful communication

    The policy should explicitly request that all postings and interactions on social media, whether public or private, maintain a standard of respect. It's important to clarify that any content potentially seen as bullying, discriminatory or harassing will not be tolerated and may be subject to disciplinary action.

  • Extension of anti-harassment policies

    Integrating your existing anti-harassment policies with your social media guidelines can provide consistency and clarity. This approach ensures that employees understand that the company's stance on harassment extends to all forms of communication, including digital platforms.
  • Addressing workplace grievances 

    It is crucial to clearly outline the appropriate channels for employees to express workplace concerns or grievances. This section should detail how employees can approach HR or company leaders with their issues. Providing these internal avenues is essential, as employees often resort to social media to voice their frustrations when they are unsure of the proper procedures or feel unheard.
  • Education on policy implementation 

    Simply having a policy is not enough. Regular training sessions and reminders about the social media policy help ensure that all employees are aware of the guidelines and understand the importance of adhering to them. This ongoing education can significantly reduce the likelihood of inappropriate social media conduct.

By implementing and rigorously enforcing a comprehensive social media policy, businesses can not only prevent potential conflicts but also foster a more respectful and harmonious workplace environment, both online and offline.

RELATED: The High Cost of Sexual Harassment in the Workplace >>

Revisit Your Business' Harassment and Bullying Policy

Creating a safe and healthy work environment is not just a legal requirement for employers; it's a moral imperative. A crucial step in curbing social media harassment is the implementation of a comprehensive Harassment and Bullying Policy. This policy must unequivocally denounce all forms of harassment and bullying, clearly signaling to employees that such behaviors are unacceptable and will not be tolerated under any circumstances.

The policy should be communicated in a manner that leaves no room for ambiguity. Employees must understand that the organization is committed to maintaining a respectful work environment and that any form of harassment, whether it occurs on social media or in person, directly contradicts company values and standards.

Key elements of the policy should include:

  • Explicit definitions

    Clearly define what constitutes harassment and bullying, especially in the context of social media interactions. Providing specific examples can help employees recognize unacceptable behaviors.
  • Reporting mechanisms

    Encourage employees to report any instances of harassment or bullying. The policy should offer multiple confidential channels for reporting, ensuring that employees can come forward without fear of retaliation or judgment.
  • Outline of consequences 

    Detail the disciplinary actions that will be enforced if an employee is found to have engaged in harassment or bullying. This section should emphasize that the company takes these issues seriously and will act decisively to uphold its standards.

By establishing such a policy and ensuring its thorough dissemination and enforcement, employers can take a significant step towards fostering a workplace culture that is not only legally compliant but also morally sound and conducive to employee well-being.

RELATED: Cliques at Work - Identifying and Managing Exclusionary Behaviors >>

Take Complaints Seriously

For a harassment policy to be effective, employers must create a culture where complaints are taken seriously. This means providing a safe and confidential process for employees to report harassment without fear of retaliation.

Every complaint should be thoroughly investigated, and appropriate actions must be taken to address the issue. This approach not only helps the victims but also sends a clear message to all employees about the seriousness with which the company treats harassment.

Promote a Culture of Respect and Inclusivity

Prevention of social media harassment also involves fostering a workplace culture that values respect and inclusivity. Employers can achieve this by regularly conducting workshops and training sessions that emphasize the importance of respectful online interactions.

Encouraging employees to think before they post and to consider the impact of their words on their colleagues is crucial in cultivating a positive and harassment-free environment.

Implement Regular Training and Awareness Programs

Education is key in preventing social media harassment. Employers should implement regular training programs that focus on what constitutes harassment, the impact of cyberbullying and how to report it. These sessions can include scenarios and examples, helping employees understand the nuances of social media interactions and the fine line between casual comments and harassment.

Training Leadership and Management

Effective prevention and handling of social media harassment also depend on the training of leadership and management teams. They should be equipped to recognize signs of harassment, understand how to handle reports sensitively and confidentially and know the procedures for escalating issues when necessary. Their role is crucial in fostering a workplace environment where harassment is not tolerated and all employees feel safe and respected.

RELATED: Staying Out of Harm's Way - Handling Disgruntled Employees >>

Axcet HR Solutions: Expert Guidance to Prevent Employer Liability for Social Media Harassment

Axcet HR Solutions, a trusted PEO for small businesses, is here to provide expert HR consulting to help you protect your business from such incidents.

Take proactive steps to mitigate liability and maintain a safe work environment. Our experienced consultants can guide you in implementing effective social media policies, educating employees and fostering a culture of respect and digital responsibility.

Don't let social media harassment put your business at risk. Partner with Axcet HR Solutions and gain the knowledge and support needed to address this critical issue. Schedule a consultation today.

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