High-tech Harassment: Employer Liability Under Title Vii for Employee Social Media Misconduct

• Publication year: 2021

HIGH-TECH HARASSMENT: EMPLOYER LIABILITY UNDER TITLE VII FOR EMPLOYEE SOCIAL MEDIA MISCONDUCT

Jeremy Gelms(fn*)

Abstract: Workplace harassment has traditionally occurred within the "four walls" of the workplace. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth the U.S. Supreme Court recognized that employers are liable under Title VII of the 1964 Civil Rights Act for harassment that is sufficiently severe or pervasive to alter the employee's work environment. The rise in social media, however, has created a new medium through which harassment occurs. Courts are just beginning to confront the issue of if and when to consider social media harassment as part of the totality of the circumstances of a Title VII hostile work environment claim. This Comment argues that to determine whether social media harassment evidence should be considered as part of the totality of the circumstances, courts should examine whether the employer derived a "substantial benefit" from the social media forum. If the employer derived a "substantial benefit" from the social media forum where the harassment occurred, then a court may logically consider the social media platform to be an extension of the employee's work environment and thus part of the totality of the circumstances. This framework is consistent with the traditional workplace harassment analysis under Title VII, recognizes evolving technology in the modern workplace, and would provide employers with guidance on how to maintain an affirmative defense to harassment allegations in the social media age.

INTRODUCTION

Since 1986, the U.S. Supreme Court has recognized workplace harassment as an actionable claim against an employer under Title VII of the Civil Rights Act of 1964.(fn1) Traditionally, harassment has occurred through face-to-face verbal and physical acts in the workplace.(fn2) The traditional notion of the workplace, however, continues to expand with changing technology and flexible schedules, which increasingly allow employees to stay connected to the work environment at numerous locations outside the physical boundaries of the office.(fn3) In particular, the rise of social media has given employers and employees new means through which to interact with customers, colleagues, friends, and acquaintances outside the workplace.(fn4) These same technological developments have also expanded the media through which individuals may perpetrate acts of harassment.(fn5) With the rise in popularity of social media, harassment has moved beyond the physical walls of the workplace to the virtual workplace.(fn6)

The broadening conception of the workplace and increasing use of social media in professional settings expands potential employer liability under Title VII.(fn7) In order for workplace harassment to be actionable under Title VII, courts have traditionally required plaintiffs to show that the harassment was sufficiently "severe or pervasive" under the totality of the circumstances to "alter the conditions of the victim's employment and create an abusive working environment."(fn8) This is known as a hostile work environment claim. Courts have split over what type of evidence to consider under the totality of the circumstances analysis(fn9) and they are just beginning to address claims of harassment conducted via social media.(fn10) However, those courts that have addressed the issue have indicated that evidence of social media harassment should be included as part of the totality of the circumstances.(fn11)

This Comment argues that courts examining employer liability for harassment via social media should not abandon the traditional totality of the circumstances model but should recognize the changes wrought by evolving technology in the workplace. To determine employer liability, courts should consider whether the employer derived a "substantial benefit" from the social media through which the harassment occurred. If the employer derived a "substantial benefit" from the social media then the court may properly view the harassment as part of the employee's work environment and consider it as part of the totality of the circumstances for purposes of a hostile work environment claim.

This Comment begins by providing background on Title VII workplace harassment law and outlining the traditional basis of employer liability. Part II examines courts' recognition of the expanding concept of the workplace and their acknowledgment that evidence of harassment outside the traditional walls of the workplace should be considered as part of the totality of the circumstances of a hostile work environment claim. Part III discusses the use of social media by individuals and businesses. Part IV addresses an employer's potential liability for harassment that occurs via social media. Finally, Part V provides a framework for courts to examine employer liability for harassment that occurs through social media. It argues that courts should consider evidence of harassment over social media as part of the totality of the circumstances of a hostile work environment claim when the employer derives a substantial benefit from the social media at issue.

I. THE U.S. SUPREME COURT HAS RECOGNIZED EMPLOYER LIABILITY UNDER TITLE VII FOR WORKPLACE HARASSMENT THAT CREATES A HOSTILE WORK ENVIRONMENT

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin."(fn12) Initially, courts held that Title VII's proscription only created a private right of action for disparate treatment claims, such as claims by qualified applicants denied employment because of their race or gender.(fn13) It was not until 1986, in Meritor Savings Bank v. Vinson,(fn14) that the U.S. Supreme Court recognized workplace harassment as an actionable claim under Title VII.(fn15)

In Meritor, the U.S. Supreme Court recognized that workplace harassment is actionable against an employer under Title VII if the harassment is sufficiently "severe or pervasive" to alter the employee's work conditions.(fn16) This became known as a hostile work environment claim.(fn17) In Meritor, a bank employee alleged that, over a period of four years, the vice president of the bank sexually harassed her on numerous occasions and eventually raped her.(fn18) Broadly interpreting Title VII, the Court found that "[t]he phrase 'terms, conditions, or privileges of employment' evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women.'"(fn19) In other words, the Court held that Title VII was intended to cover not only economic barriers, but psychological and physical injuries as well.(fn20) On the other hand, Title VII is not "a general civility code" that makes conduct illegal simply because it is uncomfortable or inappropriate.(fn21) Thus, in order for workplace harassment to be actionable as a hostile work environment claim "it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'"(fn22) The Court's opinion, while establishing that a hostile work environment is actionable under Title VII, left unanswered what qualifies as "severe or pervasive" harassment giving rise to employer liability.

A. Harassment in a Hostile Work Environment Claim Must Be "Severe or Pervasive" Under the Totality of the Circumstances

Seven years after Meritor, in Harris v. Forklift Systems, Inc.,(fn23) the U.S. Supreme Court defined what constitutes sufficiently "severe or pervasive" harassment to support a hostile work environment claim. Theresa Harris, a manager at Forklift Systems, Inc., claimed that she was repeatedly subjected to unwanted sexual comments and innuendos by the company president, to the point where she was forced to quit her job.(fn24) In reviewing Harris's hostile work environment claim, the Court first established that, in order to meet the "severe and pervasive" requirement, the plaintiff must show that the work environment is hostile or abusive under both an objective and subjective standard.(fn25) In other words, the plaintiff must show not only that he or she personally perceived the work environment to be hostile or abusive, but also that a reasonable person in the plaintiff's position would perceive the environment to be hostile.(fn26)

In lieu of a bright-line test based on a single dispositive factor, the Court stated that the fact-finder must look at the totality of the circumstances to determine whether the conduct was sufficiently "severe or pervasive" as to create a hostile work environment under the objective prong of the analysis.(fn27) The Court identified several relevant factors, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, as opposed to a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."(fn28) The more severe the harassment is, the less pervasive it needs to be, and vice versa.(fn29) Accordingly, a single incident of harassment will generally not create a hostile work environment unless the harassment is quite severe.(fn30) Notably, the Court made no reference to the location or...