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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