Tuesday, April 19, 2011

A Facebook Harassment Consideration

Last week's Case of the Week was a real doozy that highlighted the importance of the employer's response to harassment. I mentioned that there was some additional bullying that I didn't cover in my post. Today, I'd like to revisit the case but highlight a different issue: Facebook.

The plaintiff in this case was a female student football team manager at Hofstra who suffered some bullying from the guys on the team. Per the opinion:
One photograph of plaintiff was posted twice on Davis's Facebook page. One page had plaintiff's photograph as part of a "Wanted for Kidnapping" poster, which referred to her as "Missy Piggie" and had additional text warning people not to approach plaintiff and calling her "Extremely Dangerous!!" The second page was headed "Wanted by the FBI," listed Summa’s name, along with "aliases" of "Miss Piggie, the 'Wannabe' Big Boss Man, F.B.Manager" and some personal information. She is described as "currently posing as an active member of the Hofstra University Football Team Managerial Staff" and "has a tendency to 'BOSS' People around without any type of authority."
The Court ultimately considers the posts as part of the totality of the circumstances, but not without some hesitation.

The Court just didn't seem too keen on the Facebook stuff and here's why:
The incident regarding the Facebook posting also presents several problems. First, there is no real connection between the posting, made by a football player or players, and plaintiff’semployment. "When sexual harassing acts occur outside the workplace, the plaintiff must identify sufficient facts from which to infer a connection between the misconduct and the employment." Heskin v. Insite Advertising, Inc., 2005 WL 407646, at *22 (S.D.N.Y. Feb. 22, 2005). Although the Facebook posting included possible references to plaintiff’s employment,i.e, "F.B. manager" and "The Wannabe Big Boss Man," the posting concerns her relationship with Hall and does not contain anything that would seem to affect her employment environment. In addition, there is no evidence that it was viewed in the workplace.
I'm not sure how much of a connection you need to draw here. I mean, imagine your co-workers (admittedly, the players are probably not "employees" here) posting your picture and calling you a bossy "wannabe" who is only "posing" as a member of the team? And "Miss Piggie"!? I think, just maybe, that's going to affect your employment environment. That said, the Court here was just asking for a specific line or connection to be laid out by the plaintiff.

I don't think this was the turning point in the case for the plaintiff. It does, however, highlight a concern for plaintiffs, and a possible defense for employers, in harassment cases involving social media. There must be a connection between the harassment and the work environment.

A copy of the opinion is available here.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.