The Rules of Sexual Harassment and Employment Discrimination are Challenged by Social Media – in Deciding Employment Law Outcomes, Courts are Divided over the Value of Social Media Posts

            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: and fill in a Contact Us form.

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