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May 22, 2012
Harassment: Employer Found Liable for Co-Worker Cyber Bullying

News of online bullying and harassment of pre-teens and teens is everywhere these days, but it’s not only students who engage in this type of activity. As blogs and social media have grown in popularity, grown-up employees have started using them to harass their co-workers.

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You might think you don’t have to worry about harassment like this if it happens outside the workplace. Think again. In an unpublished decision, the California Court of Appeals recently upheld a jury award of $820,700 against an employer based in part on harassing blog postings. (“Unpublished” means the ruling can’t be cited as binding legal precedent.) Could this happen to you?

Employee Claims Disability Harassment

“Sanchez” was born without fingers or a thumb on his right hand; instead, his hand has only two small stubs. He is generally able to function but is self-conscious about people seeing his hand, so he often keeps it in his pocket.

Sanchez began working as a juvenile corrections officer for the Orange County Probation Department in July 1996. In August 2006, Sanchez filed an incident report, complaining that his supervisor treated him in an unprofessional and disrespectful manner after an incident involving “combatant minors.”

Within a week of the filing, some of Sanchez’s co-workers launched two blogs that soon featured a series of critical and highly offensive comments by the bloggers and others about Sanchez as well as some other staff and the workplace in general. The comments included repeated references to Sanchez as “the claw,” a “rat,” and “the one-handed bandit” and were often vulgar.

The blogs weren’t created on the employer’s computers or approved of by the employer, but employees at times used the employer’s computers to access the blogs. Once he learned of the blogs’ existence, Sanchez regularly read them from home.

Sanchez was also subject to harassment in the workplace. For example, he found the word “claw” written in several places in the workplace, including an electric utility cart he used, and the cord to the cart was intentionally cut. A co-worker reported the latter incident on several occasions but was never interviewed about it. Some employees would also stick their hands in their pockets and smirk as Sanchez passed by.

After Sanchez repeatedly complained about harassment, an investigation found that many employees were accessing the blogs from their work computers (as well as other computers). The deputy chief probation officer sent two emails to all employees informing them that the blog postings violated the county’s policy. The county also partially blocked access to the blogs, although it had the ability to completely block access.

Although possible bloggers were identified, none was ever interviewed. Neither HR nor upper management ever contacted Sanchez about his complaints. Sanchez filed a lawsuit against the county, alleging harassment based on disability and failure to prevent harassment under the California Fair Employment and Housing Act (FEHA). A jury found the employer liable on both counts, and the employer appealed.

What Matters Is the Harasser, Not the Place of Harassment

On appeal, the employer’s argument rested largely on the notion that the blog postings could not provide the foundation for its liability because the conduct was outside the physical workplace and was “non-place activity” that the employer neither dictated nor authorized. It also claimed that there was no evidence that “a current employee” posted any of the blog comments.

To the contrary, the Court of Appeals cited ample evidence that the harassment was committed by county employees, both in and out of the workplace. The employer’s own investigation found that employees accessed the blogs on workplace computers, the postings referred both directly and indirectly to Sanchez, and the postings discussed work-related issues. Moreover, management sent two emails to employees directing them to stop posting improper comments on the blogs, which suggests the administrators believed employees were posting.

The court concluded that a jury could reasonably infer that co-workers posted the derogatory blogs. And the jury could hold the employer liable for that harassment because it failed to take immediate and appropriate corrective action when it learned of the blogs. An employer’s liability under FEHA for harassment by a nonsupervisory employee hinges on the employer’s response once it learns of the conduct—not the conduct itself, the court stated. Thus, that the harassment may have occurred outside the workplace was irrelevant. Espinoza v. County of Orange, Calif. Court of Appeals (Dist. 4) No. G043067, (2012)

The Employer’s Failure to Prevent Harassment

The employer also disputed the finding that it had failed to take all reasonable steps to prevent harassment, as required by FEHA. It pointed to its “prompt immediate investigation,” antiharassment policies, the two emails about the blogs, and the partial blocking of access to the blogs.

The court countered by noting that the blogs continued for 8 weeks after the employer began investigating and that it didn’t completely block access. Further, the employer never interviewed anyone, including Sanchez or the alleged bloggers, and never took action regarding the harassment that did not involve blogging. It wasn’t a stretch, then, to find that the employer did not respond sufficiently.

Limit Your Liability

As this case indicates, you need to treat online or off-hours harassment just as you would harassment in your physical workplace. Provide an effective mechanism for complaints, investigate all complaints promptly, and take appropriate remedial action. You should also make sure your antiharassment policy clearly applies to online and off-hours harassment.

Practice Tip: Your antiharassment policy should cover all harassing conduct against co-workers, including conduct that takes place after hours or online.

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