November 13, 2017
Laura L. Rubenstein
Recently in Times Square, NY, I was witness to three women, who I later learned were co-workers, have an encounter with the Naked Cowboy. One of the women was swept up in the arms of the street performer and posed for a photo, taken by a second co-worker her supervisor. Laughing as they walked away, the supervisor said she couldn’t wait to post it on Facebook and share with their co-workers. The employee protested, saying it was private and asked the supervisor not to share the picture.
With a few clicks, what started out as a funny tourist escapade in NYC would be forever remembered on the pages of Facebook to the chagrin of the woman held in the arms of the Naked Cowboy. Even more frightening, the simple post could create liability for herself and her employer by simply posting the photo despite the employee’s protestations.
Managers are always company representatives, regardless of whether they are on the clock or off.
Managers are always company representatives, regardless of whether they are on the clock or off. Decisions made, information shared, actions taken, and even social media posts by the manager may all be attributed to her employer. So, when a manager posts a picture of an employee which the employee deems to be embarrassing and humiliating, can the employer – and the supervisor – be liable? You bet.
Harassment and discrimination in the workplace takes many forms, and an increasing number of these cases are now exposing supervisors to personal liability. In a lawsuit, an employee can allege that a supervisor created the uncomfortable work environment which resulted in emotional damages. Title VII of the Civil Rights Act, the federal law that provides for protection from harassment and discrimination, does not impose personal liability on supervisors at this time; however, harassment lawsuits often add tort claims such as intentional infliction of emotional distress, which do impose personal liability on ill-prepared managers. In some jurisdictions, states are beginning to draft legislation that explicitly provides for a supervisor to be personally liability in harassment cases, though this has not yet extended to Maryland, Virginia, or the District of Columbia.
In light of this emerging exposure, it becomes even more critical that employers educate and protect themselves by holding management training. The training should focus, not only on policies prohibiting workplace harassment and discrimination, but also how to be inclusive, treat subordinates and colleagues with respect, and foster workplace civility.
In the situation with the Naked Cowboy, before posting the photo, the supervisor should have taken a moment to remember that she was a manager first and a friend second. Based on the verbal protests made that it would result in embarrassment, which were witnessed in the presence of a third co-worker, the manager had a duty to refrain from sharing the photo.
Understanding the liability that your untrained managers can create for your company is only the first step. The second and critical step is to implement management training to further reduce risks. Demonstrating that a company provided management training can serve as an affirmative defense to the lawsuit, may defeat claims for punitive damages, and more importantly, makes managers more proactive and aware before legal trouble arises.
To schedule your company’s management training or to discuss other workplace policies, contact Laura Rubenstein at firstname.lastname@example.org or (443) 379-4013.
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