Whether a “Hostile Work Environment” Exists Depends on the Facts. Bloomberg Law and The Washington Post discuss two different situations with Employment Chair and Partner Amy Epstein Gluck

A recent Ninth Circuit ruling builds on the EEOC’s newly finalized harassment guidance, which says employers can be liable for off-duty conduct that occurs online or on social media if it affects someone’s work environment, when it ruled last week that employers can be liable for hostile work environment claims arising from an employee sharing harassing content online that has negative consequences at work, including affecting another employee’s ability to perform their job, according to Bloomberg Law reporter Khorri Atkinson.

Pierson Ferdinand Employment, Labor, and Benefits Chair and Employment Counsel Amy Epstein Gluck explained that the ruling extended workplace protections for alleged victims of harassment by ensuring that employees are afforded the same treatment regardless of where harassment occurs, while putting employers on notice about the extent of their legal obligations. Amy explained how a hostile work environment can be created, and forecasted:

“‘We are going to see more of these issues crop up, especially in an election year’ because the country’s polarized political climate often fuels workers’ emotional and contentious ideological expressions on social media.”

By contrast, after columnist Karla Miller advised an advice seeker about whether she should tell the wife of a co-worker that her husband was cheating on her with a colleague (in the office, no less), she contacted Amy to understand whether the advice seeker could claim a hostile work environment (nope!). Amy explained:

While the couple’s behavior was inappropriate for the workplace, “there’s a difference between unprofessional action … and unlawful action. To qualify as a hostile work environment, the behavior has to be “severe or pervasive” enough to interfere with an affected employee’s ability to perform their job — and it has to be both subjectively (in the witness’s eyes) and objectively (to a reasonable person) hostile or offensive.”

“Online Harassment Ruling Provides Fodder for Future Enforcement,” Bloomberg Law (August 1, 2024)

“Work Advice: When to report office affairs and when to keep mum,” The Washington Post (August 1, 2024)