How Employee Social Media Posts Can Create a Hostile Work Environment: What Employers Need to Know

The most common harassment claims employers receive are those related to hostile work environments. These claims arise when an employee experiences harassment or discrimination in the workplace, based on an employee’s inclusion in a protected category – such as the employee’s race, religion, sex, national origin, disability, sexual orientation, age, etc. – that is severe enough to create an intimidating or abusive work environment. Harassing conduct may include, but is not limited to, inappropriate jokes, slurs, name calling, physical assaults or threats, intimidation, mockery, insults, offensive objects or images, and interference with work performance.

Recent Case Study: Social Media Conduct and Hostile Work Environments

A recent case in California highlights how an employee’s offsite conduct can still contribute to a hostile work environment. A California court recently held that an employee’s harassing posts on a personal, non-work related Instagram page towards another employee gave rise to a hostile work environment claim even though the conduct occurred outside the worksite In the case, a corrections lieutenant at a prison in Lompoc, California, created an Instagram page where he shared hundreds of posts, including sexists, racists, and homophobic memes, which referred to the prison’s inmates and staff. Over 100 prison employees followed the Instagram account, and many engaged with the page by “liking” or commenting on the posts. One employee, a psychologist working at the prison, became a target of the lieutenant’s social media posts. The lieutenant shared images specifically resembling her and made posts suggesting violence and sexual contact with her. The psychologist observed other employees discussing the Instagram page at work and she repeatedly complained to prison supervisors about the Instagram content, but no action was taken. This lack of response, coupled with the ongoing harassing posts, led her to transfer to another facility within the prison. Two months after her initial complaint, the prison investigated and found the Instagram content to constitute harassing conduct. The prison sent a cease-and-desist letter to the lieutenant, and nearly three months after the psychologist’s initial complaint, the Instagram page was taken down. As a result of the harassment, the psychologist felt compelled to leave the prison and transfer to a facility in Texas. She subsequently filed and won a lawsuit for sex discrimination against her former employer.

Legal Implications and Employer Responsibilities Regarding Employees’ Social Media

Courts evaluate workplace harassment claims by considering the totality of the circumstances. This means that even if the harassment occurs outside of the physical workplace, it can still be relevant in determining whether a hostile work environment exists. Key factors include:

• Frequency and Severity: How often and how severe was the harassing conduct?
• Impact on Work Performance: Did the conduct interfere with the victim’s job performance?
• Cumulative Effect: What was the overall impact of the conduct on the victim?

In this case, the court highlighted that the harassing conduct made it more difficult for the psychologist to perform her job, that the other prison employees and managers interacting with the Instagram posts contributed to the hostile work environment, and that the employer’s response to her complaints were neither prompt nor effective.

The court in her case held that even though it occurs outside of the workplace, on a personal, non-work related Instagram account, employees posting harassing social media content can create a hostile work environment when it affects an employee’s work environment.

Steps Employers Can Take to Prevent and Address Harassment

The best way to eliminate harassment from the workplace is through prevention. California employers with at least five employees are required to provide harassment prevention training to all employees every two years.

Employers are liable for harassment if they knew, or should have known, about the harassment and failed to take prompt and corrective action. To minimize risks of harassment claims, employers should:

1. Always respond promptly to complaints of harassment and take all complaints seriously: Employers should implement an effective grievance process for all complaints of harassment as well as inform employees that their complaints will be investigated and addressed.
2. Train supervisors on their duty to report harassment: A supervisor who observes, or receives a complaint of, harassment, discrimination, or retaliation must report it to HR immediately so that it can be investigated. A supervisor’s inaction can create significant liability for employers. California law requires employers with at least five employees to provide at least two hours harassment prevention training to supervisors every two years.
3. Do not ignore offsite conduct: As demonstrated by the prison case, the issue is not where the harassing conduct occurred but rather whether or not it affected the workplace environment. Employers should not ignore complaints about conduct that occurred outside of the workplace, including social media interactions or offsite events.

How Ventura Employment Lawyers Can Help

An employment attorney is essential in guiding employers through the complexities of harassment claims. At Myers Widders, our experienced employment attorneys counsel private employers, public entities, non-profit organizations in all phases of employment law including class action litigation, Fair Employment and Housing claims, Department of Labor claims, Unemployment Insurance claims, wage and hour disputes, wrongful termination and discrimination and harassment claims. For tailored legal advice or to discuss a specific case, contact Myers Widders employment law partner, Steven Lee today for a free consultation:(805) 644-7188 or slee@nullmwgjlaw.com.

Written by Eleni A. Cotsis, Law Clerk