By Megan H. Poonolly

Many employees today have embraced Facebook, YouTube, Twitter, Reddit and other social media tools as a way to connect with anyone and everyone they know and broadcast their every thought and emotion. Coupled with the proliferation of smartphones, this widespread adoption of social media is increasingly impacting the landscape of sexual harassment claims in the workplace.

How? For starters, as with many areas of the law, much of sexual harassment litigation turns on the perceptions of a hypothetical “reasonable” person. Text messages and social media updates, however, are notoriously bereft of context and tone can be difficult–if not impossible–to decipher. Even the most well-intentioned communications can be misinterpreted or, worse, the subject of litigation. As more and more employees become entrenched in this era’s “share everything” vibe, the line between what is considered improper and offensive may be harder to draw.

In addition, the social media era is reshaping the types of sexual harassment claims being pursued. In the last few years, cases have been brought based on, among other things: (1) setting up a Facebook group page to shame a co-worker for her sexual indiscretions; (2) posting a photo on Facebook of an employee bending over at work showing her underwear; (3) posting “seductive” pictures of an employee on MySpace; and (4) sending repeated unsolicited Facebook chats.  These claims are no longer “he said, she said” scenarios, but rather increasingly depend on a voluminous record of photos, texts, chats, timelines, screen grabs, “friends” lists and more. And while “off duty” conduct can sometimes bolster a hostile work environment claim, social media activity often might occur during working hours via smartphones, creating increased risks for employers even if no company IT resources are used. 

Social media may also factor into a hostile work environment claim even if the harassment itself didn’t occur online. For example, liability may ultimately depend on whether an employer knew or should have known about the harassment and whether it took remedial action. If an employee posts about her co-worker “keeping his creepy hands to himself,” does that constitute constructive notice of harassment? What if a supervisor “friends” his subordinates and subsequently views harassing posts made between co-workers? Similarly, some courts have found that posting statements like “he needs to keep his creepy hands to himself” or “anyone know a good EEOC lawyer?  Need one now” could constitute protected activity supporting  a claim of retaliation for making a sexual harassment complaint.   

So, how should employers mitigate these risks? Here are five steps employers can take now:

  1. Embrace technology and “fight fire with fire.” Employers might consider using filtering technology to limit access to social media sites while at work. Companies can also use technology to monitor whether employees are accessing social media sites while on the job.
  2. Incorporate social media into sexual harassment investigations. Employers should include a search of social media activity as part of any investigation into a complaint of sexual harassment. While some states prohibit asking a job applicant for their social media passwords, it may still be permissible to request access to a social media account to assist in a company investigation. (Ask your Seyfarth attorney regarding the particular laws of your state). In the event litigation ensues, making this inquiry could bolster the company’s assertion that it promptly and accurately investigated the complaint. 
  3. Provide Real-World Training. Integrate social media and communication scenarios into any existing harassment training. Nowadays, employees may be more likely to send a cryptic text, a chat message, a questionable “selfie,” or a self-deleting “snapchat” to get a co-worker’s attention than to verbally ask them out on a date. Keep training fresh and relevant so that employees can understand the way their communications impact the workplace.
  4. Update Policies. 
    • Harassment Policy: Employers should ensure that their harassment policies describe harassment in a way that encompasses online and social media behavior.  In addition, the harassment policy should clearly delineate the only acceptable methods of reporting harassment, to make clear that merely posting a complaint on Facebook or Twitter is insufficient.
    • Social Media: Carefully consider including guidelines on “friending” between supervisors and subordinates. Include a broad definition of social media, as new sites and technology comes and goes frequently. Inform employees that the company has the right to, and will, monitor their computer usage. Review the policy annually to ensure that the policy adequately covers the latest and greatest developments in social media.  
  5. Limit access to and monitor company-owned social media accounts. Employees aren’t the only ones using social media. Public Twitter and Facebook pages can be an integral and valuable part of a company’s brand. Likewise, some companies use internal social media networks like Yammer or Chatter to increase co-worker engagement. Employers should make sure that any company-owned social media account has a designated individual responsible for posting to the page. In addition, all of the company’s social media sites should also have a designated monitor (or a software equivalent) who periodically checks the sites and ensures that no inappropriate messages or videos are being posted by employees about other employees (or anyone else for that matter).

For more information on this or any other employment law related matter, please contact the author or your Seyfarth attorney.