A recent case serves as a good reminder that an employer has an obligation to protect its employees from work-related harassment, even when that harassment doesn’t come from another employee.
The Second Circuit case involved a Town Planner who had been harassed by a resident of the Town for many years. That resident repeatedly sent letters and emails to Town officials accusing the Town Planner of being involved in a “sex scandal” with a subordinate and of having substance abuse problems.
Town officials took some steps to protect the Town Planner, including asking the police to investigate. Unfortunately for the Town Planner, the police didn’t find any of the acts to be criminal. They also notified the resident’s attorney that the harassment must stop.
Ultimately, the Town Planner resigned due to the harassment, which had continued for four years. Only then did the Town contact an employment attorney for advice and conduct a sexual harassment investigation into the resident’s actions.
The former Town Planner sued the Town, alleging that it had discriminated against her based on sex by failing to take appropriate action to protect her from the resident’s harassment. She claimed the Town had a duty to protect her from the hostile work environment caused by the resident’s harassment.
Although the lower court dismissed her claims, the appellate court found that a reasonable jury could conclude that the Town’s actions “were not sufficient in light of the circumstances.”
For instance, the Town could have considered whether civil litigation against the resident would have been appropriate.
Sexual Harassment on Instagram
Another case points out that an employer may be liable for harassment that doesn’t occur in the physical workplace.
A staff psychologist for a federal prison learned that a corrections lieutenant was posting sexually offensive content targeting her on his Instagram account. Her repeated complaints to her employer were ignored by supervisors, who told her the page was “funny” and that she needed to toughen up or get a sense of humor.
Months later, as the lieutenant continued to target the psychologist, he was finally told that he must stop violating the prison’s anti-harassment policy. He continued the inappropriate postings for another month, but the prison took no action.
The psychologist then quit her job and sued the Bureau of Prisons for sexual harassment. The lower court dismissed her case because the posts were made on the lieutenant’s personal Instagram page and they weren’t sent to her or shown to her in the workplace.
On appeal, the Ninth Circuit pointed out that the posts could be viewed in the workplace and, more importantly, even wholly offsite conduct can affect the work environment.
The court rejected the idea that “only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.”
Unlawful Retaliation on Facebook
One employer learned the hard way that statements on social media can be considered retaliatory and subject to legal consequences.
When an employee, Riley Bockus, wasn’t paid the overtime he believed he was owed, he threatened to call the labor board. His employer, Bevins & Son, promptly fired him, and the former employee filed a complaint with the US Department of Labor (DOL).
The DOL investigated the complaint and ultimately entered into a settlement agreement with the employer. The agreement required Bevins & Son to pay back wages and liquidated damages to 17 employees. Further, the employee who had been fired was to be paid additional backpay as well as punitive damages.
The DOL issued a press release about the settlement but didn’t name any of the employees. News reports of the settlement also did not include employee names.
The company’s secretary and treasurer, however, posted the following statement on Facebook: “All we are going to say is please google the disgruntled employee whom was fired and contributed to the story Riley Bockus (his word and character will be seen).”
Several commenters on that post alleged that Bockus had a criminal record, and many of those posts were “liked” by representatives of Bockus’s former employer.
The DOL filed a complaint against the employer, alleging that the Facebook post constituted unlawful retaliation. Under the Fair Labor Standards Act (“FLSA”), it’s unlawful for an employer to discharge or discriminate against an employee for engaging in FLSA-protected activity. This includes whistleblowing activities, such as filing a complaint.
The employer argued that the Facebook post was protected by the First Amendment and that the post hadn’t disadvantaged Bockus.
The court disagreed, pointing out that an employment action is considered to disadvantage an employee if it objectively dissuades a reasonable worker from making or supporting similar charges, and that a post inviting readers to investigate his criminal background was certainly disadvantageous to Bockus’s future employment opportunities.
The court also rejected Bevins & Son’s argument that the First Amendment protected the Facebook post, since the First Amendment does not protect speech that is retaliatory under the FLSA.
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Whether you are an employee or an employer, please feel free to contact us if you have any questions about the above or any other employment-law issues.
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Photo by Lyncconf Games, used pursuant to Creative Commons License CC BY 2.0
