Posted: January 10, 2018 | by Brian W. Boyd
There can be little doubt that the widespread use of social media has changed the employment landscape. Employers are often left scratching their heads, wondering how to deal with sensitive issues raised by their employees’ use of social media. #MeToo is no exception. #MeToo is part of a cultural phenomenon where individuals alleging to have been the subject of sexual harassment or assault take to social media to publicly denounce their alleged harasser by name with the hashtag #MeToo. This trend is not limited to personal affairs as #MeToo has often targeted the poster’s supervisor or coworkers.
Because #MeToo has the potential to expose employers to legal liability, employers must deal with it. This does not mean that employers should trove through their employees’ social media accounts to uncover any reports of offensive conduct. This does mean that employers cannot ignore these posts once they are brought to their attention. Regardless of how a #MeToo posting (or any other similar allegation) is brought to the employer’s attention, reasonable steps must be taken to investigate the matter just as with any other complaint of workplace harassment. This investigation will, hopefully, provide the employer with enough information to determine whether the allegations have merit or whether the accuser has merely jumped on the bandwagon. In the event that the investigation unearths evidence of a cognizable claim of workplace harassment (i.e., based on a protected trait like sex or race), then the employer must take reasonable steps to address the situation.
Importantly, employers should not wait until a #MeToo post implicates its workforce to take steps to combat workplace harassment. Having a well-defined workplace harassment policy in place (such as in an employee handbook) is an employer’s first line of defense against liability. This policy should clearly state that harassment based on any protected trait has no place in the workplace. It is especially important for employers to include conduct occurring on social media within this policy. The policy should also establish clear consequences for violations, with penalties ranging up to, and including, termination. While not all types of harassment are legally prohibited, the policy should encourage its workforce to report incidents of harassment so that the employer can make the decision as to what action, if any, is appropriate. To this end, employers should establish clear and discrete channels of communication for employees to report offensive conduct.
In addition to having a well-crafted workplace harassment policy, employers must take steps to educate its workforce regarding workplace harassment. All employees should be included in this training. This is especially important in light of the fact that recent events have revealed that nobody is immune from accusations of harassment. During this training, the employer’s expectations regarding harassment should be made known. Equally important, especially as it relates to supervisors, the employer should take steps to reasonably educate its workforce on legally prohibited forms of harassment.
While #MeToo continues to remain a hot button issue in today’s tumultuous social landscape, its implications will no doubt be felt well into the future. Employers can no longer ignore social media as implicating matters solely outside the workplace. On the other hand, employers should not see this as a call to scour social media to ensure that their employees are not engaging in any unsavory behavior. At any rate, once an employer comes to know of potential workplace harassment, reasonable steps must be taken to investigate the matter, and if warranted, take appropriate remedial measures.
Please contact Masud Labor Law Group should you have any question regarding workplace harassment or the implications of social media on the workplace.
Brian Boyd joined Masud Labor Law Group as an associate attorney in 2017. Since that time, Brian has taken a comprehensive approach to the law to solve the complex problems faced by our clients.
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