Think before you post: EEOC cases show pitfalls of social media in the workplace

Thursday - 3/13/2014, 11:15am EDT

(Note: This post contains language some readers may find racially insensitive)

An Air Traffic Control specialist in Dallas finds out a co-worker has made racially disparaging remarks about him on Facebook after he makes an office "food run" to Chick-fil-A.

But what starts out on the social-networking site soon spreads to the workplace, the employee says. Another co-worker responsible for training the employee begins mocking and hounding him, he alleges.

That's when the Equal Employment Opportunity Commission got involved. The case, heard by the agency on appeal in January 2012, was one of the first to deal with the thorny issue of how social media in the workplace impacts anti-discrimination and equal-opportunity laws.

Now, the commission is considering whether it needs to develop broader guidance dealing with social media when it comes to hiring and workplace.

The EEOC held a meeting Wednesday to examine how social media impacts employees' claims of discrimination — either in the workplace, itself, or during the hiring process.

A single Facebook post can contribute to hostile workplace

Social media is increasingly blurring the lines between employees' public and private lives, a panel of legal experts told the commission.

Also still blurry, at this point, are a host of legal questions surrounding social media in the workplace: Can employers screen applicants using Facebook or Twitter, for example? What should managers do if a quick perusal of a jobseeker's Facebook page turns up "protected information," which employers are barred from using in the hiring process, such as the disclosure of an illness? And can an employee's social media use — even off the clock — contribute to a hostile work environment?

Despite the absence of clear-cut legal precedents, EEOC's Office of Federal Operations, which adjudicates discrimination claims in the federal sector, has taken on a handful of cases dealing with social media, said Carol Miaskoff, EEOC's acting associate legal counsel.


After picking up food from a Chick-fil-A restaurant, a co-worker posted on Facebook that he "would make the next food run to a racist restaurant and see if his Black ass wants to complain. If he does, I will laugh in his face."

— EEOC documents


Two of those cases — one dealing with workplace harassment and the other with recruiting — offer insight into the complex legal issues surrounding just one errant tweet or ill-conceived Facebook post.

Take the case of the FAA worker, for example.

After picking up food from a Chick-fil-A restaurant, one of his co-workers posted on Facebook that he "would make the next food run to a racist restaurant and see if his Black ass wants to complain. If he does, I will laugh in his face."

The employee, who didn't have a Facebook account learned about it from other co- workers who inferred that the alleged harasser was upset food was ordered from Chick-fil-A because of its purported anti-gay reputation.

Later, the employee alleged that his regular trainer — who was friendly with the alleged harasser — reassigned him to another trainer who began harassing him. The employee said he was "mocked, verbally disrespected, his training was sabotaged/undermined, and his career was destroyed," according to documents presented during the employees EEOC appeal.

At first, the agency dismissed the employee's claim, stating that the initial Facebook post was insufficient evidence of a hostile work environment. However, after the employee appealed the claim, the EEOC reversed the agency's decision, stating that the negative work atmosphere the employee alleged — including the harassment during his training — was part of a series of incidents dating to the initial Facebook post.

"This case is significant because it acknowledges that a social media posting by a co-worker may contribute to the creation of an unlawful hostile work environment," Miaskoff told the commission.

Another federal EEOC case dealt with a 61-year-old woman who alleged age and sex discrimination after she wasn't selected for a Park Ranger position. The woman alleged the agency was unfairly setting aside jobs for younger applicants because it had recruited for the position through Facebook. That disadvantaged older workers who use computers less frequently, she argued.

EEOC found no evidence the Park Service attempted to weed out older applicants by recruiting for the position through Facebook or that it exclusively used the social media site to collect applications.

No sweeping guidance just yet

Miaskoff noted, however, that both decisions are procedural in nature, meaning they apply only to the cases at hand and do not set new precedents in EEOC case law.

Still, the commission doesn't plan to issue any sweeping edicts just yet.

Instead, the meeting was likened to a listening session, and commissioners said they need more time to study the issue.

"The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns," said EEOC Chair Jacqueline A. Berrien in a statement following the meeting. "This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace."

At the meeting, panelists and members of the commission said it would be difficult to create in set-in-stone rules for a technology that's evolving so rapidly.

"Even if we did issue something today, within a week it would be out of date," Commissioner Victoria Lipnic said.

RELATED STORIES:

Social media creates tricky situation for feds

Feds' private lives: what's legal and what's not

Avoiding 'cliff jumpers' and other tips for effective social-media use at agencies