The explosion of social media is no longer a headline grabbing phenomenon. In addition to Facebook, MySpace, Twitter and a plethora of other social websites, individuals have taken to creating and maintaining their own personal blogs. While most employers recognize that they have a duty to maintain a workplace atmosphere free of illegal harassment, what about the situation where one of your company's employees, on his own time and away from the workplace, starts to make fun of another employee's physical deformity on his personal blog? Does the company have an obligation to do something about it?
Recently, an Orange County California jury answered this question by awarding a Juvenile Corrections Officer over $1.6 million dollars on his claim that he was harassed at work due to his severely deformed right hand. In an unofficial blog about the juvenile detention center, comments were posted by an employee referring to Espinoza as "the claw" "rat claw" and "one handed commander." Espinoza alleged that the comments and harassment spilled over into the workplace. After Espinoza complained, he was transferred to an assignment he did not want, and sued. Defendant County of Orange alleged there were no suspects to investigate, and that there was no evidence that any coworkers harassed Espinoza in the workplace. The jury, on the other hand, disagreed and found in Espinoza's favor against the County. Espinoza v. County of Orange, et. al., (Orange County Superior Court Case No. 30-2008-00110643-CU-Wt-CJC).
This case certainly does not mean that employees should be banned from social media. However, it is important for the employer to recognize that it should take into account employees' use of social media when training supervisors and creating company policies. As an example, a Company's No Harassment policy should include state that pejorative comments about employees made in social media are not allowed and should be reported the same as any other harassing comments. Also, supervisors should be reminded that they should be very careful about what they post online so that any potentially discriminatory animus is not reflected or revealed. Then, train everyone about what is suitable and not suitable for posting online and what they should do if happens. Finally, if an employee complains about another employee's harassment through social media, take steps to immediately investigate and fix the problem. Only by taking these steps can you potentially fend off claims of online harassment.