Human Resources News & Insights

Cyber-bullying: Court expands your responsibility

Like it’s not hard enough to control employee behavior in the workplace — now you’re expected to ride herd on how employees treat their co-workers on the Internet.

Case in point: A recent federal appeals court ruling in California, which held an employer liable for workers’ after-hours harassment of a disabled co-worker on a blog.

The story revolves around Ralph Espinoza, who was born with a deformed right hand. He was employed as a correctional officer at a juvenile detention center.

He was self-conscious about his right hand, and often kept it in his pocket.

After about ten years on the job, his co-workers began posting message ridiculing Espinoza on a blog set up by a fellow corrections officer.

A sampling of the posts, with some of the stronger language excised:

  • I will give anyone 100 bucks if you get a picture of the claw. Just take your hand out of your pocket already!!!
  • I’m rat claw, and I have a position which allows me to appear to be working, when in reality, I’m just (expletive deleted) while some kids with dangerous tools act like they care about gardening the walkway … please let me take them out on a work crew so I can indirectly endanger the lives of other staff who have all their body parts functional … why should they have all their limbs, meanwhile I gotta walk around with my hand in my pocket all day!!!
  • Espinoza is useless even with his good hand. Can we have staff that at least have two hands?

The posters also chided Espinoza for filing a complaint about his supervisor, putting him on a “rat list” that appeared on the blog.

Accessing blog from work computers

Upper management eventually learned of the blog, and investigated which work computers were used to access the blog, the user IDs and the time of access.

They found that “many employees” were accessing the blog — some using generic passwords, some using identifiable names.

Management sent an e-mail to all employees, stating the blog postings violated organizational policy. At the same time, the organization blocked access to the sites through the generic password. But employees could still get to the blog through the use of specific log-in names.

Although management knew the names of several of the blog posters — and the HR department had been notified of both the harassing comments and their authors’ indentities — none of the culprits were even called on the carpet.

The Chief Probation Officer eventually sent an all-employee e-mail asking for “help to stop the nonsense” and “let the blog be put to rest.” She described it as “hurtful, destructive and highly unprofessional.”

Despite Espinoza’s continued complaints to his supervisors about the harassment, no one in management or HR ever interviewed the employees who were allegedly involved in the blog postings.

Employer didn’t do enough

Espinoza sued for harassment and discrimination based on his disability. He said the actions of his co-workers had brought on insomnia and depression, and his doctor testified that he couldn’t work due to the hostile work environment.

The employer claimed it couldn’t be held liable for the harassment because the behavior was outside the workplace.

But the judge said that while “employers do not have a duty to monitor private communications of their employees,” they do have “A duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such (actions are) taking place … in settings related to the workplace.

The employer didn’t do enough to protect Espinoza from the harassment, the court said.

A jury awarded Espinoza $820,000 in damages — $320,000 in lost earnings and $500,000 for mental distress. The appeals court upheld the jury award.

The case is Espinoza v. County of Orange. To read the full decision, go here.






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  • MMAN

    Let me first be clear that I do not agree with these rulings. However, I must say that I guess employers are getting what they asked for here. In another article, recent court decisions have allowed employers to terminate employees for making disparaging remarks about their employers on social media sites on their “own” time (something that I totally disagree with as well). So I guess the same rules apply here as well that the employer needs to be able to control speech of employees when they are off the clock whether disparaging statements are made regarding the employer or another employee.