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Can Social Media Posts Show Workplace Harassment?

Hardin Law Group

In a claim of employment discrimination, harassment, or retaliation, the parties may submit social media posts as evidence before the court. For example, a person’s social media posts may contain direct threats against a colleague or refer to them using discriminatory language. However, if the colleague posts to their private social media account rather than a company page, a court will likely evaluate whether the posts evidence workplace discrimination or harassment. A recent California appellate decision reviewed several social media posts submitted as evidence of discrimination and harassment.

The Facts

According to the opinion, the plaintiff was a tenured professor with the Los Rios Community College District. The dispute arose after she expressed concerns about granting a subordinate tenure whose classroom was directly next to hers. She felt threatened by the subordinate’s social media posts, including one that stated: “Kill your boss,” and all tenure committee members expressed concerns about his political activism on campus. When the subordinate threatened to sue the District for curtailing his on-campus activities, the plaintiff claimed that the Dean pressured the committee to grant him tenure. However, the plaintiff left the subordinate “unsatisfactory” marks in his evaluation.

Around the same time, another colleague showed the plaintiff more social media posts from the subordinate, which she claimed evinced hate for people who expressed her religious and political views. The District then asked her to change her unsatisfactory evaluation after the subordinate complained. It also denied the plaintiff’s request to move the subordinate’ classroom farther from hers. When she asked to work remotely to avoid interactions with the subordinate, the District granted her request; however, the District told her she could no longer serve as department chair or matriculation committee chair because those positions could not be performed remotely.

As a result, her salary decreased by approximately $1,500 per month. The plaintiff then filed several causes of action against the District alleging discrimination and harassment based on her race (white) and religion (Christian) and retaliation for reporting the harassment, among other claims. In response, the District filed an anti-SLAPP motion asking the court to strike most of her claims. The trial court granted the motion for some claims and denied the motion for others. The District then appealed.

The Case on Appeal

On appeal, the court spent the majority of its opinion analyzing the subordinate’s social media posts to determine whether they constituted harassment based on the plaintiff’s race and religion. First, the appeals court affirmed that the subordinate’s social media posts were not criminal threats, which are not considered protected activity. Specifically, it found that he did not intend the post containing the phrase “Kill your boss” as a threat to anyone. Additionally, because the post did not reference race or religion, it did not give rise to a harassment claim. The court ruled similarly with respect to the subordinate’s other social media posts. While these posts referenced “religious extremists,” they were not directed at the plaintiff. Moreover, the subordinate posted on his private social media rather than a campus account.

The court also noted that the plaintiff only discovered the posts years later when colleagues showed them to her. While some of the posts contained violent rhetoric, the language was not directed at the plaintiff or anyone else. Therefore, the posts were insufficient to alter the terms or conditions of the plaintiff’s employment or create a hostile work environment based on religion. The court thus dismissed the plaintiff’s first cause of action because she failed to establish a probability of prevailing on the merits.

Speak with an Experienced LA Employee’s Rights Lawyer Today

If you have questions about the type of evidence used in employment discrimination claims, contact the Hardin Law Group for more information.

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