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If evidence of cyberbullying connects back to work, however tenuously, employers may be on the hook.
A stand-alone cyberbullying policy may not be necessary to address the problem, according to Nathan Pangrace, an attorney with Roetzel & Andress in Cleveland. But harassment policies and use-of-technology policies should clearly prohibit cyberbullying, he said. So should anti-discrimination policies.
While no federal law specifically prohibits cyberbullying of employees, Title VII of the Civil Rights Act of 1964 prohibits a hostile work environment based on race, color, gender, national origin or religion, regardless of whether that environment is created in person or by texts or social media.
Make sure, though, that efforts to prevent cyberbullying don’t violate the National Labor Relations Act (NLRA), cautioned Peter Gillespie, an attorney at Fisher & Phillips in Chicago.
Employers may be liable for harassing texts from a supervisor, even if they are sent outside of work hours.
Consider Isenhour v. Outsourcing of Millersburg, No. 1:14-CV-1170 (M.D. Pa. 2015). In that case, a female operations manager allegedly harassed a male accounts receivable representative in 2012 by, among other actions, sending sexually explicit texts. The plaintiff introduced into evidence one comment from the operations manager’s cellphone requesting him to send her explicit pictures of himself.
In this case, an account manager responsible for supervising the accounts receivable representative testified that she, not the operations manager, sent the text. The operations manager also testified that she witnessed the account manager send sexual text messages to the plaintiff and that the comments and messages were written only outside of work hours.
No matter. This, along with other evidence (for example, testimony that the operations manager touched the plaintiff inappropriately and made comments about his body), was enough for the court to rule that a jury could decide that the plaintiff was subject to a hostile work environment in violation of Title VII.
“Courts have found that online platforms were merely extensions of the workplace,” Gillespie said. “The fact that the conduct may have been occurring during off hours and online did not prevent aggrieved employees from bringing claims.”
Threatening Facebook Messages
Just as it was unclear initially who sent the text in Isenhour, sometimes it isn’t clear who authored a harassing social media message. But if it can be traced back to employees or the work premises, that may be enough for there to be employer liability.
In Maldonado-Cátala v. Municipality of Naranjito (D. P.R. 2015), an emergency medical technician with the municipality claimed that threatening Facebook messages sent to her contributed to a hostile work environment.
After the plaintiff alleged that an emergency management office director sexually harassed female employees, the director was forced out.
The plaintiff then received several hostile messages on Facebook. One message sent on Nov. 1, 2010, at 9:46 p.m., called her a “whore,” “snake” and “dike.” The message also said, “I will see you fall you dirty lesbian and every one of you one by one [for] what you did to that man, the one from emergency management. … Remember that you have children. … By the way, the boy is gay and the girl is a lesbo.”
Interpreting the message as a threat, the plaintiff filed a police report. The police traced the message to a computer in the municipality’s emergency management office that only its director and secretary could access.
The court denied summary judgment for the employer on the plaintiff’s Title VII hostile work environment claim, noting that the use of the word “whore” raised Title VII concerns. (The pejorative words about sexual orientation did not; the plaintiff did not argue that there was sex stereotyping.) A reasonable jury could infer that the director permitted one of the municipality’s employees to send the message, the court said.
But don’t take social media at face value, Gillespie cautioned. As a prank, a third party could create a social media profile purporting to be a company manager harassing subordinates, he said.
Employers also need to proceed carefully when trying to stem online bullying to ensure that they don’t run afoul of the NLRA, Gillespie said.
The National Labor Relations Board has ruled that many employer policies that could be used to prevent workplace cyberbullying may violate Section 7 of the NLRA, which protects an employee’s right to engage in concerted activity, he explained.
For example, while posting someone’s photo online is a common form of cyberabuse, the board has concluded that it is unlawful for an employer to bar employees from taking pictures of co-workers.
Policies should be drafted to clarify that they are intended to prohibit abusive behavior without interfering with an employee’s rights, he said.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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