Sexual Harassment in the Era of Social Media
On behalf of Michael Epstein at The Epstein Law Firm, P.A.
Sexual harassment can be an incredibly difficult and often traumatic experience. Victims can be subjected to significant torment that not only inflicts emotional distress but also raises substantial career-related concerns. Sexual harassment is an emotionally-charged act, and the rise of social media has only served to further complicate matters. What once was typically regarded as a workplace incident has now spread beyond the confines of the office and into the digital world. The exponential explosion of social media has provided new outlets for workplace interactions to occur. As of March 2013, there were more than one billion active Facebook users with nearly 700 million of these users posting at least once per day. With so many conversations occurring online, the boundaries of the traditional “workplace” have become blurred, and it is becoming increasingly clear that employers can be held liable for the gender-based harassing conduct of their employees that occurs online.
What is Sexual Harassment?
Generally, if an individual, or a group of people, exhibit unwelcomed sexual behavior towards another, it constitutes sexual harassment. Sexual harassment is not confined to one specific act. It can include a wide array of activity, including but not limited to the following:
- suggestive behavior
- sexual jokes or questions
- physical contact
- offensive gestures
Sexual harassment does not have to be explicitly sexual in nature. The conduct must simply be directed toward the targeted individual because of his or her gender. Sexual harassment is gender neutral. Men can sexually harass women, and women can sexually harass men. Members of the same gender can also sexually harass one another. New Jersey’s Law Against Discrimination protects all genders against both heterosexual and homosexual harassment.
There are two types of sexual harassment, quid pro quo and hostile work environment. Quid pro quo sexual harassment occurs when an employer demands sexual favors from a subordinate under the threat of job-related consequences, such as job-retention, promotion, or performance reviews. Hostile work environment sexual harassment involves situations where the victim’s employer(s) or coworker(s) acts in such a way that the inescapability of their improper conduct makes the victim feel uncomfortable because of his or her sex, thus making the work environment ” hostile.” This commonly occurs as the result from ongoing physical contact or inappropriate comments.
Social Media’s Effect on Sexual Harassment
The explosive growth of social media has led to many instances where sexual harassment has escaped the confines of the workplace and followed the victim home. Social media has risen to the point where an employer must recognize its employees are digitally connecting and conversing with one another both personally and professionally. An employer can therefore be held responsible if an employee is being sexually harassed by a coworker in the office and online. The internet merely provides a new medium for the atrocities of sexual harassment to occur.
Social media sites offer a number of opportunities for employees to engage in conduct that could give rise to actionable claims of discrimination and harassment. Platforms like Twitter, Facebook, and YouTube give employees the tools to post potentially sexual comments or pictures to or about one another or to cyber-bully coworkers. The popularity of these websites has enabled workplace sexual harassment to continue or even proliferate outside of work, thus taking away one of the victim’s only safe havens. Even though this conduct may have occurred outside the office or after regular work hours, the employer may not be relieved of its responsibilities. If the employer knows or should know that such discriminating conduct is occurring, it has the duty to address it through proactive and effective steps.
Employers can request information regarding their employees’ social media accounts if a sexual harassment claim is made. Although New Jersey recently became the twelfth state to enact legislation that prohibits employers from requesting access to employees’ social media accounts for employment purposes, this law does not prevent an employer from acting judiciously in quashing any claims of sexual harassment.
Sexual harassment can be physically and emotionally taxing. No one should be subjected to the cruelty of sexual harassment in the workplace or at home. Any potential victims should immediately notify their employer and seek to put a stop to it in all forms. If you are the victim of sexual harassment, you should contact an attorney as soon as possible to preserve your rights and to ensure the inappropriate conduct is stopped as soon as possible.