Workplace Digital Harassment Claims

Digital harassment also known as cyberbullying or online harassment refers to repeated, unwelcome conduct via social media, emails, texts, or other digital platforms that targets an employee based on protected characteristics (e.g., race, sex, age, disability, religion, or national origin). This can include posting derogatory comments, sharing manipulated images, unwanted advances, or spreading rumors. Under U.S. federal law such conduct is unlawful if it creates a hostile work environment.

Employer Obligations In and Outside the Workplace Regarding Online Harassment

An employers’ role in addressing online misconduct stems from the EEOC’s Enforcement Guidance on Harassment in the Workplace which emphasizes that harassment isn’t confined to physical offices, but includes online conduct, including off-duty and offsite, that contributes to a hostile work environment/workplace consequences (e.g., viewed by coworkers, discussed at work, or affects job performance). 

Employer Liability Standards In the Context of Digital Misconduct

When digital misconduct occurs, liability depends on the harasser’s role and whether it leads to a tangible employment action (e.g., firing, demotion). For example if a supervisor texts sexual comments off hours or post misgendering content on social media visible to his or her team, the employer may be held liable if it results in an adverse employment action. Another example may include a coworker that shares racist memes in a group chat that includes the victim and the employer fails to take corrective action after becoming aware (or should have known). Employer liability can also extend to third party context, where a vendor sends harassing messages to an employee and an employer ignores the complaint.  

Employers Possible Defense to Digital Misconduct

It is helpful to consider how the employer can avoid liability to determine the strength of a case of workplace discrimination including harassment. An affirmative defense includes the employer exercising reasonable care to prevent and correct digital harassment such as implementation of appropriate workplace policies and training – AND – whether the employee availed themselves of those mechanisms (this defense may not apply if the harasser is a supervisor with a tangible action). If the employer does not have or fails to enforce digital conduct policies, they may be liable.

Employer Responsibilities to Address Digital Harassment In and Outside of the Workplace

Policies regarding conduct in the workplace, while on duty, using company tools, requires employers to monitor and prevent digital harassment and, once discovered, promptly investigate complaints and act on information, while implementing policy to prevent future incidences. For example a company may discover or receive a complaint regarding derogatory slack messages targeting employee’s protected characteristics such as sexual orientation or race. The company must then act to correct the problem and enact preventive policies and training or risk being liable for workplace discrimination and harassment.

Policies regarding conduct outside the workplace, off duty, using personal devices also requires an employer’s oversight if it affects the workplace (e.g., viewed by colleagues, cause anxiety impacting work). Failure to do so can result in the employer being liable for digital misconduct outside of the workplace.  The 2024 EEOC Guidance states: “Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace.”

Recent Rulings Holding Employers Accountable for Off-duty Digital Conduct:

• Okonowsky v. Garland, 2024 – A co-worker posts sexually explicit Instagram content targeting female colleagues visible to many coworkers. The employer knew, but response was “lackluster” resulting in a verbal warning and the posts continued. The 9th Circuit court reverses lower court’s dismissal and finds the off-duty posts created hostile work environment and holds employer liable, opining that digital harassment is actionable if it “bleeds” into work.

• Roy v. Correct Care Solutions, 2019 – Co-workers send degrading Facebook messages about women to the victim. The employer is denied summary judgment because offsite messages contributed to a hostile environment. The employer is found negligent for inaction.

• EEOC v. Crye-Leike, 2015 (consent decree) – Victim subjects to racial harassment via company email/social media including offensive memes resulting in a $3.3M settlement and a requirement that the employer revise policies moving forward.

These cases underscore that courts view social media as an “extension of the workplace.” Employers may be liable if they dismiss complaints as personal or trivial, failing to act on information or complaints.

Employer Best Practices to Meet Obligations 

A lack of robust policies can result in employer liability. What an employee should see in the workplace regarding digital conduct:

• The employer should implement anti-harassment/social media policies to cover off-duty conduct affecting work. An employer should define digital harassment (e.g., “posts targeting protected traits”), employee requirements for reporting; and consequences of digital misconduct. A failure to enact policies to thwart digital harassment in and outside of the workplace can have legal consequences for the employer, an all too common occurrence in businesses across the country.

• Providing annual training sessions for employees (especially managers) on identifying and responding to online harassment is crucial. Failure to conduct training can result in employees being subjected to discrimination and harassment resulting in a hostile work environment. 

• Various reporting systems should be set up and remain anonymous to promote adherence and prevent retaliation. Without a way to meaningfully report illegal activity, employers are vulnerable to lawsuits.

• Employers must adopt a rigorous investigation protocol that is prompt and impartial, preserving evidence and witness testimony. All decisions should be well documented to demonstrate compliance with the law. Failure to act promptly and meaningfully can land an employer in court. 

• Employers must follow up with remediation tailored to the severity of the issue and monitor for retaliation. Employers should encourage the use privacy settings to prevent problems and continue to monitor public posts for continuing online harassment occurring. It is important to foster a culture of inclusivity to avoid issues of employment discrimination while auditing for systemic issues. Title VII, of the Civil Rights Act of 1964, prohibits discrimination, including harassment on the basis of protected characteristics; proactive measures can prevent violations of both federal and state laws.

Contact an Experienced Employment Law Attorney

Digital harassment in and outside of the workplace is a pervasive issue that employers are required to mitigate through various mechanisms. If you are a victim of workplace digital harassment resulting in a hostile work environment and your employer fails to act meaningfully, or retaliates against you for reporting an issue resulting in an adverse employment action such as termination, it is important to seek guidance from an experienced employment law attorney as soon as possible. Contact the employment law attorneys of Alan C. Olson & Associates for immediate assistance at 262-785-9606.