Sexual harassment in the workplace has traditionally been viewed as inappropriate conduct that occurs within the office walls. However, this view continues to expand along with technology. Actionable sexual harassment can now come in the form of inappropriate, offensive, or sexual photos or comments made through e-mail, text messaging, social networking sites, blogs, instant messaging, and other types of virtual communication. The lines between home and work life have blurred and sexual harassment can occur even when employees are off the clock.
In the New Jersey Supreme court case, Blakey v. Continental Airlines, a female airplane captain complained to her employer that she was receiving pornographic pictures and offensive comments regarding gender. In 1993, Blakely filed a complaint with the court for “sexual discrimination in violation of Title VII of the Civil Rights Act.” Throughout the trial, Blakey’s coworkers persisted with posting hostile, sexist, and inappropriate comments to the company’s online forum. Blakely filed a suit in the Superior Court of New Jersey alleging that the comments posted about her led to a hostile work environment.
The Supreme Court of New Jersey ruled that sexual harassment conducted outside of the workplace can be actionable when the occurrence involves employee relationships and is therefore harassment regardless of where it occurs. The Court also ruled that an employer cannot turn a blind eye to offensive messages posted online when the employer either should be or is aware of the messages. Sexual harassment is considered discrimination based on sex/gender under Title VII of the Civil Rights Act of 1964.
The law is continuously evolving to keep pace with changes in communication mediums. Considering employers can be held liable for sexual harassment claims, it is imperative that a comment made on a Facebook page be treated in the same manner as an inappropriate comment made in a face-to-face interaction. In some cases, individuals let codes of professional conduct fall to the wayside when they are removed from in-person situations.
In an interview with Bloomberg BNA, labor attorney Donna Ballman said, “It’s almost inevitably going to create an uncomfortable working environment if somebody is sexually harassing you when you go home to check your social media sites. If an employee has reported an incident of sexual harassment, then the employer needs to investigate. If the employer doesn’t do something about it and if the person feels like they can’t continue to working, then the employer is going to face sexual harassment liability.”
Legal experts stress the importance of creating a detailed sexual harassment and professional conduct policy that includes social media, text messaging, and e-mail. Banning social media isn’t the answer. Instead, training and clear policies ensure that management, supervisors, employees, colleagues, and other members of a business know that they must exercise proper judgment when interacting with others or risk losing their job.