The ease and speed of posting or responding to the proliferation of messages and images on social media—sometimes by employees at the 11th hour, right before bed, in 140 characters or less, and oftentimes without aforethought—has spawned employee complaints of harassment, defamation, violation of a right to privacy and a host of other claims. None of this was even imaginable in 1964 when Title VII was enacted (or in 1991 when it was amended). But employers must now interpret an EEOC guidance that was written and cas es that were decided by courts in the old millennia to determine how to apply these rules to regulate conduct in the new workplace of the present and future, transformed by these technological advances.

Employers are now grappling with how to lawfully regulate employees’ text messages, blogs, and social media activity in the face of potential complaints from co-workers about harassing comments posted or images shared publicly.