Even though sexual harassment in the workplace has been prohibited by a federal law for thirty years, recently the United States has had several highly publicized sexual harassment complaints at very well-known employers including a public university (University of California, Berkeley), a national news organization (Fox News), a national park (Yosemite National Park), and a national restaurant chain (Chipotle) that was just found liable for $8 million by a jury. While these complaints have made front-page news, most harassment complaints never make the headlines.
In June 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a report titled “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace“. The Report, almost 130 pages long, contains important information for both employers and employees regarding harassment (not just sexual harassment) in the workplace, prevention of such harassment, guidelines for reporting and responding to complaints of harassment, and social media’s role in such events.
EEOC’s Key Findings
The authors of the Report noted seven key findings by the task force created by the EEOC in January 2015. The top three key findings are:
“Workplace Harassment Remains a Persistent Problem. Almost fully one-third of the approximately 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment.”
“Workplace Harassment Too Often Goes Unreported. Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The least common response to harassment is to take some formal action – either to report the harassment internally or file a formal legal complaint. Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. Employees who experience harassment fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.”
“There Is a Compelling Business Case for Stopping and Preventing Harassment. When employers consider the costs of workplace harassment, they often focus on legal costs, and with good reason. Last year, EEOC alone recovered $164.5 million for workers alleging harassment – and these direct costs are just the tip of the iceberg. Workplace harassment first and foremost comes at a steep cost to those who suffer it, as they experience mental, physical, and economic harm. Beyond that, workplace harassment affects all workers, and its true cost includes decreased productivity, increased turnover, and reputational harm. All of this is a drag on performance – and the bottom-line.”
Social Media’s Role in Harassment in the Workplace
Not surprisingly, the EEOC recommends that workplace anti-harassment policies incorporate dealing with social media. This is because social media use is at such high levels, and will likely increase. The EEOC noted the following: “The Pew Research Center recently found that 65% of all adults – 90% of those 18-29 years olds, 77%of those 30-49 – use social media. Safe to say, employers can expect a time when virtually the entirety of their workforce is using social media.”
In its Report, the EEOC referred to the EEOC’s meeting on social media that I previously wrote about here: “The U.S. EEOC Turns Its Attention To Social Media In the Workplace“. The EEOC focused on employee use of social media as “a possible means of workplace harassment.” Indeed, at the EEOC’s meeting on social media, an attorney who litigates on the plaintiffs’ side explained how use of personal social media accounts could figure into situations of workplace harassment. Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. As a result, the EEOC found that “harassment should be in employers’ minds as they draft social media policies and, conversely, social media issues should be in employers’ minds as they draft anti-harassment policies.”
“For example, an anti-harassment policy should make clear that mistreatment on social media carries the weight of any other workplace interaction. Supervisors and others with anti-harassment responsibilities should be wary of their social media connections with employees. And, procedures for investigating harassment should carefully delineate how to access an employee’s social media content when warranted.”
On the other hand, the EEOC also wrote that “the use of social media among employees in a workplace can be a net positive” by creating “a space for ‘less formal and more frequent communications.'” Simply, “via social media, employees can share information about themselves, learn about and understand better their colleagues, and engage each others’ personal experiences through photos, comments, and the like. If this leads to improved work relationships and collegiality, social media can benefit a workplace.”
This is a big “if”, of course. And, it is usually not a good idea to become Facebook friends with co-workers, particularly subordinates/managers.
While the EEOC’s Report was focused on harassment, and not on social media specifically, it is good to see the agency spend some time on social media issues in the workplace. Technology and social media platforms continue to evolve at a much faster pace than the law. While the National Labor Relations Board (NLRB) has been the most active in analyzing social media policies in the workplace, the EEOC is starting to give more attention to these matters, and social media’s role will only continue to increase.
DISCLAIMER: Information provided on this website is not legal advice. It does not create an attorney-client relationship. Nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.