A Tweet is just a Tweet, right? Not if that Tweet is part of a series of harassing messages or interactions that one employee directs at another. As a supervisor, you’re likely well aware of the factors that define a hostile work environment allegation. It might be an employee’s persistent racially-motivated jokes or a supervisor who is openly hostile to Hispanic workers. But do those same criteria apply when the comments are made on a social network, like Facebook or Twitter?
Social networking sites give employees a new avenue for expressing themselves, and that includes expressions of discrimination, from racial slurs to sexual innuendo. To find out how courts might handle social media comments in this context, let’s consider this hostile work environment suit from the early 2000s:
The Case: A female airline pilot sued her employer, Continental, and fellow male pilots for defamation, intentional infliction of emotional distress, and sexual harassment. She alleged the harassment took place, in part, on a “Crew Members” online forum, which was accessible to all company pilots and crew members. The airline argued it was not liable because the harassment did not occur in a physical space under its control.
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The Result: A New Jersey court found that the online forum was not a physical location, but it was so closely related to the workplace and, what’s more, it benefitted the employer. As a result, the forum could be considered part of the workplace. The court also stated that even though an employer is not required to monitor all private communications between employees, a company does have a responsibility to stop harassment in workplace related settings.
So what can employers do to protect themselves from social media misuse?
The single best step managers can take to protect themselves, the company, and other employees from a hostile work environment is to implement a clearly-outlined social media and electronic communication policy. These corporate policies often cover a range of issues, from limiting employees’ personal on-the-clock social media time to prohibiting employees from sharing confidential business info online.
But to protect against a hostile work environment claim, it is critical to include clear and unambiguous prohibitions against using social media and other electronic communications to make discriminatory statements or sexual innuendos about or directed toward co-workers, management, customers, and even vendors.
Although it will not provide 100% protection against all potential hostile work environment liability, a comprehensive policy lays the foundation for:
- Guiding employee behaviors.
- Implementing reporting processes.
- Creating disciplinary action that’s consistent throughout the organization.
Employment law regarding social media is still emerging, so the best way to develop a social media policy is by consulting an HR professional or attorney who has experience helping companies navigate the social waters.
It’s a supervisor’s responsibility to take action if they know or suspect employees are creating a hostile work environment, regardless of whether the behavior happens in the lunch room or on Facebook. Employees who use social media to harass others expose the company to significant potential liability and create an unhealthy, unproductive workplace.
Don’t let Tweets, posts, and blogs contribute to a hostile work environment allegation. Add the development of a social media policy to your get-it-done list.
Dianne Shaddock
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