Employers May Want to Consider Cyberbullying Policies

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By Lisa Nagele-Piazza

Dec. 23 — Cyberbullying can be a problem not only for teenagers in their social lives, but also for adults in the workplace.

Cyberbullying, yet another form of workplace bullying, is on the rise, according to management-side employment attorney Nathan Pangrace of Roetzel & Andress in Cleveland.

Cyberbullying is easier than face-to-face harassment because the aggressor doesn't have to directly confront the victim, Pangrace told Bloomberg BNA Dec. 21. Furthermore, depending on the medium, sometimes the harasser can have an added layer of anonymity by using an unidentified account, he said.

Tom Harrington, principal of the Employment Law Group PC in Washington, said he's aware of the cyberbullying issue, but that it hasn't touched his practice other than through complaints of harassment by e-mail.

Clients frequently complain of workplace harassment, but the focus is often on remarks made in the workplace or through e-mail, rather than through Facebook or other social media, Harrington, who represents employees, told Bloomberg BNA Dec. 22.

Attorneys agree that employers should have appropriate policies in place to address harassment, including bullying.

It's important for employers to have a clear written policy that addresses cyberbullying in particular, Pangrace said. “Employers should also have a policy on the use of technology and make it clear that technology in the workplace isn't to be used for bullying,” he said.

Bullying Through Electronic Technology

Workplace bullying can be defined as the “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators” that may include “threatening, humiliating, or intimidating” conduct; work interference; or verbal abuse, according to the Workplace Bullying Institute website.

About half of the organizations surveyed by the Society for Human Resource Management encountered incidents of workplace bullying, according to a February 2012 survey report.

Cyberbullying takes place through electronic technology, such as mobile phones and computers, and through communication tools such as text messaging, instant messaging, e-mailing and posting to social media, according to the Department of Health and Human Services' stopbullying.gov website.

In a 2012 case that brought a lot of attention to the issue, Espinoza v. County of Orange, 2012 BL 48429 (Cal. Ct. App. 2012) (unpublished), the California Court of Appeal upheld a $820,000 jury verdict against Orange County.

In Espinoza, a juvenile corrections officer who was born with no fingers on his right hand alleged the county was liable for co-worker harassment—including about 220 blog postings that referred to him as a “rat,” called his hand a “claw” and threatened to physically harm him.

The state appeals court found the county liable under California's Fair Employment and Housing Act because, among other things, it didn't take reasonable measures against the harassment when it became aware of the conduct.

Under California law, an employer may be “indirectly liable” for a nonsupervisory worker's actions “if it was or should have been aware of them and did not take remedial measures.”

Less Proof to Show Supervisor Harassment

The alleged harassers in Espinoza were co-workers. But if the harasser is a supervisor, the employee may not have to produce additional evidence of employer knowledge.

A federal judge in Pennsylvania decided Oct. 26 that a male employee raised triable issues about whether he was subjected to severe or pervasive sexual harassment in violation of Title VII of the 1964 Civil Rights Act (Isenhour v. Outsourcing of Millersburg, Inc., 2015 BL 351003 (M.D. Pa. 2015)).

In that case, Johnny Isenhour alleged that he was repeatedly sent sexually explicit text messages and asked by female supervisors for pictures of his genitalia.

Because Isenhour presented evidence that the alleged harassers had supervisory authority, the court said he didn't need to produce additional evidence of employer knowledge about the harassment charge.

Bullying Claim Must Be Based on Protected Class

The only laws protecting victims of bullying on the job are the ones that afford protection based on race, gender, age, disability and other protected categories, Harrington said.

Even if a person is being cyberbullied, there's not a claim unless it can be linked to one of those protected classes, he said.

On the same day as the Isenhour ruling, a federal judge in Puerto Rico found that physical threats made in a Facebook message to a lesbian Emergency Medical Technician strengthened her sex-based hostile work environment claim (Maldonado-Catala v. Municipality of Naranjito, 2015 BL 351582 (D.P.R. 2015)).

In that case, the court declined to consider the EMT's sexual-orientation-based harassment claims because she didn't allege that comments were made based on sex stereotyping. Sexual-orientation harassment alone isn't covered under Title VII of the 1964 Civil Rights Act, the court said.

But it found that she sufficiently alleged that some comments were sex-specific. An undisclosed Facebook messenger called her a “whore,” and a supervisor allegedly said he would flirt with her if she weren't a lesbian.

Employers Should Avoid Chilling Employee Speech

It's important when crafting policies to ensure that they don't run afoul of the National Labor Relations Act, Pangrace said.

On Oct. 21, the U.S. Court of Appeals for the Second Circuit upheld a National Labor Relations Board order finding that a sports bar in Connecticut impermissibly fired two workers who engaged in a work-related discussion on Facebook.

One of the employees commented on Facebook that the sports bar mismanaged payroll tax withholding and the other employee “liked” the comment.

Even though the comment contained obscenities that were viewed by customers, it wasn't directed toward customers and didn't reflect on the employer's brand, the court said.

“The Board's decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modernday social media use,” the court said.

The social media discussion “clearly disclosed the ongoing labor dispute over income tax withholdings,” the Second Circuit found.

Employers should provide training to staff and management to address harassment and should take prompt action when complaints are received, Pangrace said. “It is equally important, however, that employers avoid chilling employee speech and behavior that is protected under the National Labor Relations Act,” he added in a statement.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com