Employers Must Watch Out for Workplace Cyber-Bullying

Cyber-bullying is the use of the Internet or related technology to harass, stalk, or otherwise harm other people.  While most cyber-bullying headlines tend to involve school-aged children and teens, adults are not at all immune to being the target of cruel online activity.  Employees may post Facebook status updates, tweets, or blog entries that disparage other co-workers, and other employees may then (and often do) chime in on the discussion by commenting or replying.  If this type of behavior is repetitive or causes emotional distress to its victim, it could constitute online harassment.  Though this online activity may take place on personal accounts or even after work hours, an employer may still find itself facing liability for harassment under certain circumstances.

Espinoza v. County of Orange

A Court of Appeals of California decided a case last year that demonstrated how an employer may be held responsible for certain types of online harassment.  Ralph Espinoza was born with no fingers on his right hand and often kept his hand in his pocket out of self-consciousness.  Despite his disability, Espinoza was fully capable of performing all of his job duties as a juvenile corrections officer for the County of Orange.

In August of 2006, fellow co-workers anonymously created two personal blogs from a personal computer that targeted Espinoza.  The blog referred to him as the “one handed bandit,” referred to his right hand as “the claw,” and offered a cash reward for pictures of his hand.  Different employees began regularly accessing the blog from work computers and also contributing to the blog by commenting or creating their own posts using fictitious names.  The harassment began to extend beyond the blog, as Espinoza reported coworkers regularly taunting him, mocking him, and otherwise acting with hostility.  Furthermore, the word “claw” was written throughout his work space and his car was keyed. 

Espinoza had reported the activity numerous times, and the County of Orange did not initiate an adequate investigation or meet with Espinoza for over a year.  In the meantime, the harassment caused Espinoza to have medical problems that required him to take medical leave.  When he tried to return from leave, he had been replaced and opted not to work there in any capacity.

When Espinoza filed suit for harassment and retaliation, the County of Orange argued that it was not liable because the harassment on the blog took place on a personal account and was created outside of the workplace.  However, the court therefore rejected that argument and stated an employer is liable for the conduct of non-supervisory employees if the employer was, or should have been, aware of harassment and did not take remedial measures.  Since the employer did not take action for an extended period of time, it was liable for the harassment and Espinoza was awarded $820,000.

This is only one example of why employers should pay attention to any potential workplace cyber-bullying, even if it takes place on personal account or after work hours.  If you have any question regarding social media in the workplace, contact the Pershing Square Law Firm for help.