What role does social media play in workplace harassment, and how can general counsel position their companies to face those risks?

Social media poses a range of workplace issues. Stories abound about someone getting fired for an ill-considered post or not getting a job because of an embarrassing online photo. Employee use of social media also raises security, productivity and morale challenges. Additional challenges arise at the intersection of social media and workplace harassment.

Think of virtual workplace harassment as illegal workplace harassment related to race, sex or any other protected characteristic conducted via the invisible architecture of instantaneous information transfer known as the Internet. At first blush, concerns related to such harassment are no different than those associated with any other form of harassment.

If an employee makes a racist comment, the medium he uses to deliver the remark is beside the point; the remark is inappropriate, and the employer should deal with it. Indeed, in extreme cases, online harassment can become so severe that an employer will feel a moral obligation to take action, whether it is legally required to do so or not.

Then there are the less severe cases. Consider, for example, an employee who holds uninformed and bigoted views regarding women that he never expresses at work. Prior to the rise of social media, the employer might have remained unaware of those views. But now that employees express such views in their personal social media posts, the likelihood is rising that the employer will hear about it and need to decide how to respond.

At this point, privacy and free speech concerns begin to surface. In thinking about them, however, there are at least two things for the GC to keep in mind. First, generally speaking, the Constitution restrains the government, not private actors, so the First Amendment is not strictly in play with respect to private employers. Second, unless an employee works in one of the handful of states that prohibit employers from considering lawful off-duty conduct, nongovernmental “at-will” employers are generally free to take action on the basis of any comment by an employee, regardless of when or where the comment occurred. To the extent either of these two legal truths conflict with privacy or free speech, they have done so for some time.

Until recently, however, workplace harassment largely occurred in the workplace, such that questions about the extent to which employers are responsible for harassment outside of work were few and far between. But now that employees and managers are connected with one another by social media, the lines of the workplace are blurring.

Past and Future

To know how to navigate the future of social media and the workplace, it helps to understand the past. When Congress passed Title VII of the Civil Rights Act of 1964, it was not focused on harassment, it was focused on discrimination. The idea that Title VII could support a claim for harassment in the absence of a specific, discriminatory employment action was not firmly established until 1986, when the Supreme Court issued its decision in Meritor Savings Bank v. Vinson.

In 1991, following Meritor, Congress amended Title VII to permit jury trials, compensatory damages and punitive damages, thereby giving employers a set of powerful incentives to respond aggressively to potential workplace harassment.

Following the 1991 amendments, it is little surprise that most modern companies adopted zero-tolerance policies prohibiting all inappropriate or offensive comments, even though the law only prohibited harassment that was so severe and pervasive as to alter the terms and conditions of employment. At the same time, given that Title VII made employers responsible for harassment about which they knew or should have known, most employers responded by providing harassment training, actively encouraging employees to come forward with concerns and creating multiple avenues for making complaints.

Then came social media, raising entirely new questions about what an employer should know. If a manager has a personal, online “friend” status with an employee, does that mean the manager (and thus the company) should have known about the employee’s posts regarding a co-worker’s sexist statements at work? Likewise, what if the manager is a personal, online “friend” of the co-worker making the sexist comments at work, and the co-worker is making similar sexist comments online, too? Do those sexist online comments mean the manager (and the company) should have known about the sexist comments in the workplace? What if the manager never actually reads online posts by online friends?

Regardless of the answers to these questions, if employers come to believe that they may be held liable for failing to act when employees make comments—regardless of when or where those comments occur—employers will be tempted to monitor and regulate those comments. Indeed, the National Labor Relations Board’s push to curb employer regulation of offensive online employee speech (under the law protecting unionization rights) suggests many employers have already started down this rather slippery slope.

While employers may be well-equipped to deal with issues in the workplace, they are not necessarily equipped to deal with issues outside the workplace. Moreover, most employees probably would prefer that their employers stay out of their personal affairs and focus instead on their work performance.

Yet, as the 50th anniversary of Title VII approaches, the legal framework that has grown up around it seems to encourage employers at least to be aware of employees’ online behavior. And, as new apps like Tinder hit the scene—Tinder “works by letting users scroll through photos of potential hook-ups according to their location,” writes Iman Amrani on The Guardian’s Blogging Students—it seems likely that these issues will become more complicated, not less.

In short, it may well be time for general counsel to reexamine some of the underlying assumptions about the nature of the workplace and the role of Texas employers in regulating employee behavior in it. If not for employers’ sake, then for ours.