California Court Affirms Employer Liability For Off-Duty Harassment

In an unpublished decision, the California Court of Appeal has affirmed a jury verdict awarding an employee over $820,000 in damages for disability harassment when the employee’s co‑workers started two blogs that posted critical and offensive comments about the employee.  More after the break.

In Espinoza v. County of Orange, , 2012 WL 420149 (Cal. App. Ct. February 9, 2012), plaintiff was employed as a juvenile corrections officer for the County of Orange and was born with no fingers on one of his hands. In 2006, plaintiff’s co-workers started two blogs where they posted comments criticizing plaintiff’s disability and work performance. The blogs also criticized staff other than plaintiff and the workplace in general.

Plaintiff repeatedly complained to the County of the blog posts and other acts of alleged harassment. In response, the County sent two emails informing all employees that the blog postings violated the County’s policy and directing employees to discontinue posting improper comments on the blogs. Although possible bloggers were identified, none were interviewed as part of the County’s investigation. Later, the County blocked access to the Web site.

At trial, a jury awarded plaintiff over $820,000 in damages, including $500,000 for mental distress. The County appealed.

On appeal, the County argued that it was an error admitting the blog postings into evidence as harassment because the conduct was outside the physical workplace and was “non-workplace activity where the employer has not dictated or authorized it.”  The County claimed that it did not sponsor or endorse the blog or participate in it in any official way.   The Court of Appeal rejected this argument finding that an employer is liable for the conduct of nonsupervisory employees if the employer was, or should have been, aware of harassment and did not take remedial measures.  The Court of Appeal further rejected the County’s argument that (a) plaintiff’s reliance on the blog postings to impose liability violated the First Amendment of the United States Constitution; and (b) the federal Communications Decency Act, which protects interactive computer services from being treated as the publisher of information provided by another provider, bars liability based on federal preemption of the Fair Employment and Housing Act.

A copy of the opinion can be found here.  (Hat tip Delaware Employment Law Blog who further credits Eric Goldman at his Technology and Marketing Law Blog.)

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