Social media has changed the way we, as a society, communicate. It is a mobile form of communication, can be a form of mass communication, can be made over a variety of devices, and is often instantaneous. Courts are just now addressing the relationship between this “new” form of communication and its impact on pre-social media rules regarding sexual and other prohibited harassment. Whether you are an employer or an employee, an experienced employment attorney can help navigate the current legal uncertainty in this area.

            The laws regarding sexual harassment and hostile working environments will undoubtedly evolve as more cases involving the use of social media as a tool of harassment emerge. Employment attorneys will have to establish how existing laws against sexual harassment play out when some or all of the harassment occurs through social media, rather than more traditional means of communication. Will it matter if the harassing communication occurs outside of work hours? Does it matter if private devices (cell phones, etc.) are used rather than work computers? Do employers have an obligation to monitor the use of social media by its employees?

            Courts, however, have been quick to illustrate one social media lesson from The Social Network; namely, that “Facebook is forever.” Mark Zuckerburg’s girlfriend in the movie, Erica Albright (played by Rooney Mara) tells Mark Zuckerberg (Jesse Eisenberg):  “The Internet’s not written in pencil, Mark, it’s written in ink.” This maxim has inured to the benefit of employers, who have been quick to use employees’ Facebook posts to defeat claims of sexual harassment.

            Consider the case of Christina Targonski, an Oak Ridge, Tennessee, police officer who sued the City of Oak Ridge, claiming that the City had tolerated a sexually-charged, hostile working environment. The district court set the matter for trial, but noted that Oak Ridge could use Ms. Targonski’s prior Facebook posts in its defense. At her deposition, Ms. Targonski had testified that ‘“I’m a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that’s severely humiliating to me.”’ Yet, as the district court noted, her Facebook posts did not match this claim. “[O]n February 23, 2010,” the district court noted, “plaintiff was herself discussing on Facebook her desire for a female friend to join her ‘naked in the hot tub.’” Further, “[t]he previous day on her Facebook page, the plaintiff was discussing ‘naked Twister.’” The Court also observed that Ms. Targonski’s Facebook friends “talked about female orgies involving plaintiff, [another officer], and others, to be filmed by plaintiff’s husband.” These posts, the trial court held, were “relevant to the source of the alleged rumors [within the Department about Ms. Targonski] and to whether plaintiff could truly have found those alleged rumors offensive.”

            Similarly, in Braun v. Ultimate Jetcharters, Inc., 5:12-CV-01635 (N.D. Ohio, July 25, 2013), the federal district court granted a summary judgment to an employer regarding her hostile working environment claims, using, at least in part, the plaintiff’s own Facebook conduct against her. The plaintiff, a flight attendant, claimed in part, that a pilot made sexual advances towards her on Facebook. Nonetheless, the district court did not find these claims to be relevant, noting that the plaintiff “did not report the messages to anyone, and did not block or defriend [the pilot] from Facebook.”

Although both employers and employees should exercise caution in their use of social media, the employee should bear in mind that “Facebook is forever.” Although posts may seem to be fleeting, they could come back to haunt someone later.

The employer must also bear in mind that hiring decisions based upon scrutiny of a candidate’s social media sites could intrude upon that person’s privacy and other statutory rights.

To summarize, rules about sexual harassment and employment retaliation were put into place long before social media existed. Now, the courts are divided over the interpretation and application of these rules. It is important to consult an employment attorney when evaluating a case against an employer which cites social media as a reason for an employment action (or inaction). The employment attorneys at Kilgore & Kilgore can give competent advice for these hostile work environment situations. Call today for a free review of the facts of your case with a Kilgore & Kilgore employment attorney:  (214) 969-9099 or visit our website:  kilgorelaw.com and fill in a Contact Us form.

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            According to the movie, The Social Network, Hollywood’s re-creation of the history of Facebook, Mark Zuckerburg created Facebook based upon his earlier internet site called Facemash, which he used to rate the attractiveness of Harvard coeds. In short, Facebook’s foundation was, arguably, a site for sexually harassing classmates. Now, with approximately 1.2 billion users, Facebook – as well as other social media platforms such as Twitter, Flikr, and others — has changed the rules of communication. With one fell swoop, any person can instantly communicate with hundreds or even thousands of “friends” or “followers” about any conceivable topic.

            Not surprisingly, having changed the way we communicate, Facebook and other social media tools have also challenged established rules of sexual harassment in the workplace. For many years, the rules of employer liability – and, correspondingly, an employee’s ability to recover – for sexual harassment in the workplace have been relatively clear. Sexual harassment based upon a “hostile working environment,” the Texas Court of Appeals recently observed, requires a workplace environment that is “so extreme and abusive that it deprives the victim of equal employment opportunity in the workplace.” Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 219 (Tex. App. 2010).

            Moreover, an employer is not responsible for such harassment by co-employees unless the employer either knew or condoned the harassment, or negligently failed to remedy the situation once made aware of it. Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S. Ct. 2275, 2293 (1998). In contrast to a hostile working environment created by co-workers, however, a supervisor with authority over an employer’s terms of employment can create automatic employer liability for his or her harassing conduct. Id.

            Significantly, courts have generally held that “an employer is not liable for the harassment or other unlawful conduct perpetrated by a non-supervisory employee after work hours and away from the workplace setting.” Duggins v. Steak’N Shake, Inc., 3 F. App’x 302, 311 (6th Cir. 2001). Social media platforms that do not neatly fit within the geographic and time-based scope of “work hours” resist the neat application of these rules.

            Courts have struggled with these concepts. For example, in Garvin v. Siouxland Mental Health Servs., Inc., a 2012 case from Sioux City, Iowa, two female employees of a local psychological clinic accused a project supervisor (also female) of sexual harassment. In holding that the two employees demonstrated the need to let a jury determine the issue, the federal trial court relied upon Facebook exchanges between one of the two employees. The supervisor, the court noted, quickly “friended” one of the employees on Facebook. Thereafter, the supervisor began engaging in highly personal Facebook communications with the employee, escalating to queries of a sexualized nature. The trial court described these Facebook communications as a “period of grooming,” culminating in a Facebook text asking the employee if “hypothetically, she would have a relationship with [the supervisor].” The district court found these Facebook exchanges, while presumably occurring outside of the actual workplace, to be significant evidence relating to the hostile working environment at the clinic overall.

             A federal district court in Brooklyn, New York, however, held fast to the pre-social media rules when evaluating the relevance of Facebook posts. Summa v. Hofstra University, CV 08-0361 WDW (E.D.N.Y. Apr. 7, 2011) aff’d in part, vacated in part, 708 F.3d 115 (2d Cir. 2013). Hofstra University employed the plaintiff, Lauren Summa, as a manager for the school’s football team. During her employment, various members of the football team posted derogatory or insulting references about Summa on Facebook, commenting on her purported sexual activity with her boyfriend, referring to her as “Miss Piggie,” and calling her the “’Wannabe’ Big Boss Man, F.B. [football] Manager.”

            Although offended by the posts, the federal district court concluded that the Facebook posts were unrelated to her employment as a football manager. “[T]here is no real connection between the posting, made by a football player or players, and plaintiff’s employment,” the court concluded. “When sexual harassing acts occur outside the workplace, the plaintiff must identify sufficient facts from which to infer a connection between the misconduct and the employment.” Id. “In addition, there is no evidence that it [the Facebook post] was viewed in the workplace.”

            In a related case from a year ago out of Arizona, a school student accused the principal’s son of sexually harassing her, including through Facebook posts. The district court expressed concern that such Facebook posts maybe be beyond the district’s control, “especially if done off-campus or through the student’s own computer or phone.” Doe v. Round Valley Unified Sch. Dist., 873 F. Supp. 2d 1124, 1138 (D. Ariz. 2012)

            Both employers and employees should exercise caution in their use of social media. The employee should bear in mind that “Facebook is forever.” Although posts may seem to be fleeting, they could come back to haunt the employee later. The employer must also bear in mind that hiring decisions based upon scrutiny of a candidate’s social media sites could intrude upon that person’s privacy and other statutory rights.

           In short, rules about sexual harassment and employment retaliation were put into place long before social media existed. Now, the courts are divided over the interpretation and application of these rules. It is important to consult an employment law attorney when evaluating claims against an employer which cite social media as a reason for an employment action (or inaction). The employment lawyers at Kilgore & Kilgore can give competent advice for these employment situations. Call today for a free review of the facts of your case with a Kilgore & Kilgore employment law attorney:  (214) 969-9099 or visit our website:  kilgorelaw.com and fill in a Contact Us form.

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In the 1980 comedy blockbuster, Nine To Five (currently rated as the 20^th highest grossing comedy of all time), three female employees, played by Jane Fonda, Lily Tomlin, and Dolly Parton, endure all manner of sexual harassment and discrimination from a workplace superior, played by Dabney Coleman. Ultimately, the trio takes matters into their own hands – quite literally – kidnapping the Coleman character and instituting numerous workplace changes in his absence.

The movie’s premise may seem farfetched, but the employees’ need for “self-help,” rather than legal remedies, was not as outlandish as we may now believe. Although Title VII of the Civil Rights Act, prohibiting gender discrimination in employment, was first passed in 1964, it would be another 22 years, in 1986, before the United States Supreme Court first mentioned the concept of a sexually-based “hostile working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986). Ironically, the prohibition against gender discrimination in Title VII was the product of a last-minute amendment to the bill sponsored by Republicans and Southern Democrats, apparently believing that the concept of a ban on gender discrimination would discourage northern and western state Senators from supporting the bill. See Vinson, 477 U.S. at 63, 106 S.Ct. at 2404 (“The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives”).

Having suggested a sexually-charged, and hostile, work environment constitutes sexual discrimination under Title VII, the Supreme Court failed to give any meaningful guidance as to when an employer becomes legally responsible for a “hostile work environment.” Twelve years later, in a series of two separate decisions, Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998); Faragher v. Boca Raton, 524 U. S. 775 (1998), the Supreme Court attempted to answer this question.

The Faragher decision is particularly critical to understanding the Supreme Court’s recent decision in Vance v. Ball State University, — U.S. –, 133 S. Ct. 2434 (2013), the subject of this article. Beth Ann Faragher worked for the City of Boca Raton as a lifeguard during summers while she attended college, but finally resigned early one summer. She later claimed that several male employees – including Bill Terry and David Silverman — subjected her to a hostile work environment. Terry hired new lifeguards, supervised all aspects of a lifeguard’s work assignments, and delivered oral reprimands. Silverman made the lifeguards’ daily assignments and supervised their work and fitness training. According to Faragher, both men repeatedly made lewd remarks and spoke of women in offensive terms. More specifically, she claimed that Terry stated that he would never promote a woman to the position of lieutenant, and Silverman demanded that Faragher date him “or clean the toilets for a year.” The federal trial court ruled in favor of Ms. Faragher, concluding that she had been subjected to an impermissible hostile work environment, and that the City of Boca Raton was legally liable for the conduct of Terry and Silverman. The Supreme Court ultimately agreed to hear the matter, affirming the trial court’s ruling.

“An employer,” the Court held, “is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Id. at 807, 118 S.Ct. at 2292-93. The Court reached a similar conclusion in its companion case, Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998).

The Court intended to draw a bright line in these two cases:  an employer is liable anytime a “supervisor” is engaged in discrimination or harassment. The simplicity of this rule was too good to be true, however, as courts struggled for years thereafter with the fundamental issue of deciding who is, or isn’t, a “supervisor.” As more employers rejected traditional models of organization, this question became even more muddied.

Thus, following Faragher and Ellerth, the courts knew that only actions by “bosses” would subject an employer to automatic liability, but the courts had been provided with basically no guidance as to who a “boss” might be. The lower courts adopted two general approaches for determining who is, or is not, a “supervisor” for purposes of establishing an employer’s potential liability. The first approach – adopted by at least two federal appellate courts and the federal Equal Employment Opportunity Commission — was contextual:  a supervisor is anyone who had the “ability to exercise significant direction over another’s daily work.” Under this contextual definition, a supervisor need not have the ability to hire, fire, promote, transfer, or demote, but simply an ability to direct the work of another employee. For example, in Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003), Yasharay Mack, an African–American woman, worked for the Otis Elevator Company as an elevator mechanic’s helper at the Metropolitan Life Building in New York City. James Connolly, the “mechanic in charge” and the senior employee at the site, targeted Mack for abuse. He commented frequently on her “fantastic ass,” “luscious lips,” and “beautiful eyes,” and, using deplorable racial epithets, opined that minorities and women did not “belong in the business.” Connolly lacked authority to take tangible employment actions against mechanic’s helpers, but he did assign their work, control their schedules, and direct the particulars of their workdays. The Second Circuit Court of Appeals – covering New York, Connecticut, and Vermont –concluded that Connolly was a “supervisor” under this functional approach:  “Not only did he direct the particulars of each of Mack’s work days, including her work assignments, he was the senior employee on the work site. He therefore possessed a special dominance over other on-site employees, including Mack, arising out of their remoteness from others with authority to exercise power on behalf of Otis.”

In contrast, other federal appellate courts had adopted a more formalistic approach, concluding that a “supervisor,” for purposes of imputing liability to an employer, was limited to those persons who had actual authority to impact the terms and conditions of the employer, specifically, to “hire, fire, demote, promote, transfer, or discipline” an employee. For example, in Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005), the plaintiff worked as a parking officer for the City of Boston. One of her co-workers ripped off her bra, an incident that the plaintiff properly reported to her superiors. Thereafter, however, her co-workers began to “bust her chops,” and her co-workers in charge of her daily assignments assigned her to different meal breaks, refused to pick her up during snow storms, and other similar, derisive conduct. However, the federal appellate court held that the City of Boston was not necessarily responsible for this boorish behavior, noting that “[w]ithout some modicum of this authority [to hire, fire, promote, or demote], a harasser cannot qualify as a supervisor for purposes of imputing vicarious liability to the employer in a Title VII case, but, rather, should be regarded as an ordinary coworker.”

In short, a shift supervisor in New York may impose liability upon his employer, but 150 miles away, wrongful conduct by the same shift supervisor in Boston would not result in an employer’s responsibility. Lawyers sought a uniform answer from America’s highest court.