Washington Law Review


High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct

March 01, 2012 | 87 Wash. L. Rev. 249

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.

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