Sunday, March 4, 2012

Off-Duty Blogging Creates Employer Harassment Liability - COTW #81

Woah, a Sunday night Case of the Week? Freaky. To borrow the greatest simile ever: It's eerie and surreal, like when you’re on vacation in another city and Jeopardy comes on at 7:00 p.m. instead of 7:30. But I had out-of-town depos all day Friday, which means I had depo prep all day (and part of the night) on Thursday. So, on with the Sunday night Case of the Week!

In Espinoza v. County of Orange, a California court affirmed a judgment entered against an employer for disability harassment. The plaintiff's right hand had no fingers or thumb, but only two small stubs. Some of his charming co-workers created a blog with compassionate posts such as, "I will give anyone 100 bucks if you get a picture of the claw," and "Has anyone seen the one handed bandit's hand?"

Can the employer be held liable for the off-duty blog posts? The title of this post gives away the answer. There are two critical parts of the analysis. First, the conduct must bear some relation to the workplace. Here, the Court noted:
Employees accessed the blog on workplace computers as revealed by defendant’s own investigation. The postings referred both directly and indirectly to plaintiff, who was specifically named in at least some of them, and the postings discussed work-related issues . . . . Management sent two e-mails to employees directing they discontinue posting the improper comments on the blog. This suggests the administrators believed employees were posting.
I'll also note that the harassment continued offline and in the workplace, with co-workers mocking the plaintiff by hiding their hand in their pockets, and writing "claw" in various places.

Second critical issue: once an employer knows of harassment, it must make reasonable efforts to stop the harassment. On this issue, the Court noted:
The blog continued for eight weeks after defendant began investigating. And, although it did block the generic logins, defendant did not block access of those using personal passwords, which it had the ability to do. Further, despite several management personnel being told of potential violators it never interviewed anyone, including plaintiff and the individual defendants. And none of management’s request to cease conduct was directed toward the non-blogging harassment conduct. This is sufficient evidence to support a determination defendant failed to respond sufficiently.
And there you have it folks, an employer liability for the off-duty blogging of its employees.

A pair of wrap-up notes: 1. The Court analyzed the case under state law (California Fair Employment and Housing Act); and 2. Hat tip to Molly DiBianca: Employer is Liable for Off-Duty Harassment-by-Blog.

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.