Social Media Use by Employees Can Lead to Workplace Harassment Lawsuits for Employers
dev-digitalsilk
September 18, 2024
4 mins read
Why This Story Matters:
In July 2024, a California Court of Appeals ruled that employers can be held liable for claims of a hostile work environment under Title VII of the Civil Rights Act of 1964 if employees share harassing content online on their personal social media that negatively impacts the workplace. As a result, employers may want to consider social media screening of job applicants.
Appeals Court Rules Personal Social Media Posts Can Constitute Workplace Harassment
On July 25, 2024, the United States Court of Appeals for the Ninth Circuit ruled in a sexual harassment case that an employer can be held liable for claims of a hostile work environment under Title VII of the Civil Rights Act of 1964 if an employee shares sexually harassing content online on their personal social media that negatively impacts the workplace.
The Ninth Circuit’s ruling overturned a trial court’s decision on summary judgment in favor of the defendant in a lawsuit brought under Title VII, which protects employees and job applicants from employment discrimination based on race, color, religion, sex, and national origin during recruitment, hiring, firing, and other employment-related decisions.
The lawsuit was filed by a staff psychologist working at a federal prison who claimed a co-worker posted harassing content on social media about her and alleged that the Bureau of Prisons failed to take adequate measures to address a hostile work environment at the prison. She resigned from her job due to the lack of action and sued her former employer.
The Ninth Circuit found that online social media contact can constitute workplace harassment and noted that it “rejected” the “notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.”
The court warned: “Social media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear” and that “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.” The case was sent back to the trial court.
EEOC Enforcement Guidance on Harassment in the Workplace
The Ninth Circuit’s decision is consistent with the EEOC guidance on workplace harassment, which reads in part: “Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.”
The EEOC guidance that addresses how employee social media use can create a hostile work environment also noted: “Conduct that can affect the terms and conditions of employment, even if it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.”
ClearStar Offers Social Media Screening to Help Employers
ClearStar – a global workforce screening provider specializing in background checks, drug testing, and occupational health services – offers legally compliant social media screening to help employers understand potential liabilities or organizational risks which can be critical for reputation/brand management, risk assessment, and values alignment. Features include:
Fair Credit Reporting Act (FCRA) compliant
Full understanding of what is permissible to report
Detailed report including screenshots of information found
No extraneous non-reportable data presented
Stand-alone or integrated with a comprehensive background check
Multiple search options for depth, areas, and locations of interest
ClearStar offers employers social media screening solutions that comply with applicable laws, a social media screening white paper, and a social media screening webinar. ClearStar’s numerous certifications also help ensure the privacy, security, and confidentiality of all consumer data used during the background screening process. To learn more, contact ClearStar.
Thomas Ahearn is a Digital Content Editor at ClearStar, a leading Human Resources (HR) technology company specializing in background checks, drug testing, and occupational health screening. He writes about a variety of topics in the background screening industry including Artificial Intelligence (AI), "Ban the Box," class action lawsuits, credit reports, criminal records, drug testing, Equal Employment Opportunity Commission (EEOC), Fair Credit Reporting Act (FCRA), Form I-9, identity theft, privacy, social media screening, and workplace violence.
At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.
