Employer Is Liable for Off-Duty Harassment-by-Blog

Employee is harassed at work. Employee reports harassment to his employer. Employer investigates immediately. Employer stops harassing behavior. Anything short of this will result in liability. Compliance will preclude liability pursuant to what is known as the Ellerth-Faragher defense.

But what if the harassment occurs outside of work? Certainly, at-work harassment is the most common scenario. But it’s not the only scenario that can trigger liability. Today, in the context of social media, this scenario has become easier to imagine. A case decided by a state court in California earlier this month provides a vivid example of precisely this set of facts.

In Espinoza v. County of Orange, the plaintiff was an employee with a physical disability. In 2006, co-workers started two blogs, where they posted critical and spiteful comments about the plaintiff. Some of the posts attacked managers other than the plaintiff and about the workplace generally.

The employer did not sponsor or endorse the blog or participate in it in any official way. The plaintiff complained repeatedly to management of the blog posts, as well allegedly harassing conduct that occurred in the workplace.

Management apparently made some meager efforts to get the employees to stop posting about the plaintiff. For example, there were a couple of emails sent to the co-workers, instructing them to stop the postings. Those efforts were not successful, though, and the plaintiff filed suit for disability-based harassment. Following a trial, the jury awarded the plaintiff nearly a million dollars in damages.

The employer appealed and argued, in part, that it could not be held liable for conduct that occurred outside the workplace. The court rejected this argument. The reality is that the duty of an employer to protect its employees from unlawful harassment. This duty is unaffected by where the location occurs. If, for example, a sales employee is harassed by a customer in the customer’s worksite, the employer’s duty is unchanged–the law requires that the employer stop the harassment and protect the employee. Similarly, if the harassment occurs in cyberspace, the duty remains the same–the employer must protect the employee and stop the harassment.

Espinoza v. County of Orange, 2012 WL 420149 (Cal. App. Ct. February 9, 2012)

(H/T to Eric Goldman at his Technology and Marketing Law Blog. Prof. Goldman also looks at this case from an IP perspective and offers insight into the court’s analysis of the employer’s immunity argument pursuant to 47 U.S.C. 230).

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