Virtual troubles

published in The Journal Record | March 22, 2012

By Tony Puckett

In today’s virtual workplace, employees can work from anywhere and be in touch with anyone any time via technology. The Internet is a benefit to most employees and employers. The virtual workplace can make the workday more flexible and employees more productive. But one perhaps unexpected consequence is that virtual conduct can still result in very real workplace harassment claims.

A recent case from California illustrates this. In Espinoza v. County of Orange, 2012 WL 420149, an employee sued for disability harassment based largely on off-duty, outside-the-workplace conduct of co-workers on a blog started by one fellow employee. The blog, over an eight-week period, was filled with “vulgar and disgusting” posts concerning a birth defect of the plaintiff’s hand. The plaintiff complained to his employer to no avail about the blog, as well as other harassment occurring in the physical workplace. A jury returned a seven-figure verdict for the plaintiff.

On appeal, the employer claimed that the conduct occurring outside the workplace during employees’ off-duty hours could not be the basis of a harassment claim. The court rejected that argument, pointing out that while an employer is not required to monitor such Internet “conversations” among employees, the employer has an obligation to take effective measures to stop co-worker harassment once such is brought to the employer’s attention.

Not all courts addressing off-duty harassment have been as receptive, particularly where the conduct is between nonsupervisors and the employer has no knowledge of the conduct. Courts look for a nexus between the off-duty conduct and the workplace, and have considered whether supervisors are involved off-duty and whether the off-duty conduct was carried over in some way into the physical workplace through discussions or photos.

The lesson for employers is to take complaints about off-duty conduct seriously and investigate such claims. It may be that the conduct is not severe or pervasive enough to be illegal harassment, or that the conduct has no connection to the workplace. But failing to act on such complaints compounds the problem greatly. The California case demonstrated this as the plaintiff showed that his employer did virtually nothing to investigate or remedy the multiple complaints he made. That lack of response resulted in a very real consequence for the employer from the jury.

This article appeared in the March 22, 2012, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.