ATTENTION CALIFORNIA EMPLOYERS: NINTH CIRCUIT SAYS PERSONAL SOCIAL MEDIA POSTS CAN CONSTITUTE WORKPLACE HARASSMENT

On July 25, 2024, in Okonowsky v. Garland, the U.S. Court of Appeals for the Ninth Circuit held that harassing conduct that occurs outside the workplace – including conduct perpetrated through personal, off-duty social media posts – can constitute actionable workplace harassment for which employers may be held liable. 

Facts

Plaintiff Lindsay Okonowsky worked as a staff psychologist in a federal prison’s Special Housing Unit (“SHU”), which required her to collaborate and occasionally work side-by-side with SHU corrections Lieutenant Steven Hellman. After several work-related disagreements, Hellman created an Instagram account targeting Okonowsky, among others, which amassed a following of over 100 prison employees, including the Human Resources Manager, the Union President, and a member of the prison’s Special Investigative Services. The account contained several graphic posts depicting violence against women, many of which referenced “the psychologist” or contained derogatory images resembling her likeness. In one particular post, Hellman joked that the male custody officers would “gang bang” Okonowsky at her home during the end-of-the-quarter celebration party. The post, which was openly “liked” by staff members, caused Okonowsky to cancel the gathering.

Over the next several months, Okonowsky repeatedly complained about the posts to prison leadership, eventually leading to a drawn-out investigation fraught with delays, inaction, and resistance, including comments from management that the posts were “funny” and not “a problem,” and that Okonowsky needed to “toughen up or get a sense of humor.” During this time, Hellman’s posts increasingly targeted Okonowsky in a perceived effort to intimidate her from further complaining. Prison management and employees also continued to follow the account and engage with the content. Citing a lack of response and concern for her safety, Okonowsky transferred to a prison facility in Texas. Thereafter, Okonowsky filed a lawsuit under Title VII of the Civil Rights Act of 1964 for sex discrimination. 

Although the district court found that the posts specifically targeted Okonowsky on the basis of her sex, it concluded there was no triable issue as to whether her work environment was objectively hostile because the posts “occurred entirely outside of the workplace” – i.e., the posts were made on a personal social media account and none of the posts were sent to Okonowsky, displayed in the workplace, shown to Okonowsky in the workplace, or discussed with Okonowsky in the workplace without her consent. On appeal, the Ninth Circuit disagreed and concluded that “offsite third-party conduct can have the effect of altering the working environment in an objectively and severe or pervasive manner.” 

Analysis

In concluding so, the panel looked to “the totality of circumstances” and rejected the notion that “only conduct that occurs inside the workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.” The panel explained that “[s]ocial media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear” and, in this case, prison employees were free to view, engage with or perceive Hellman’s abusive posts from anywhere and, in turn, the employees’ engagement with the posts could be seen at any time from any place, including the workplace. 

The crucial inquiry, the panel emphasized, is not whether the content was posted in the workplace, but “whether the harassing conduct had an unreasonable effect on the working environment” and, if so, whether the employer adequately responded to the effect. In considering the employer’s response, the panel noted that evidence of management-level ratification of or acquiescence to offsite conduct is particularly relevant. Based on the facts, the panel found that a reasonable juror could conclude that the prison’s response “reinforced rather than remediated” Hellman’s conduct, and indicated to Okonowsky that it had no intention of protecting her from Hellman’s conduct and that Hellman could “act with impunity.” 

Notably, the Ninth Circuit’s decision aligns with the Equal Employment Opportunity Commission’s recently issued Enforcement Guidance on Harassment in the Workplace, discussed HERE. The guidance notes that, although employers generally are not responsible for conduct that occurs in a non-work-related context, employers may be liable for conduct perpetrated through social media where the consequences of the conduct impact the workplace and contribute to a hostile work environment. 

Employer Takeaways

As employees increasingly connect and communicate “outside the workplace” through social media and other forms of group messaging apps, employers should be prepared to address and respond to harassment perpetrated through these channels by:

  • Revising social media policies to incorporate procedures for investigating and remediating claims of misconduct, including those involving social media posts.
  • Revising anti-harassment policies to incorporate provisions to clarify that harassing, threatening, and derogatory social media interactions between co-workers will not be tolerated, even on personal accounts.

Training appropriate personnel to understand, identify, and address “offsite” or “off-duty” misconduct and harassment.


SIGN UP

SIGN UP NOW to receive time sensitive employment law alerts and invitations to complimentary informational webinars and seminars.

"*" indicates required fields

By clicking this button and submitting information to us, you will be submitting certain personally identifiable information, or information which used together with other information, can be used to identify you and/or identify information about you, to Nukk-Freeman & Cerra, PC (“NFC”). Such information may be used by NFC to contact or identify you. Personally identifiable information may include, but is not limited to, your [name, phone number, address and/or] email address. We collect this information for the purpose of providing services, identifying and communicating with you, responding to your requests/inquiries, and improving our services. We may use your personally identifiable Information to contact you with time sensitive employment law e-alerts, marketing or promotional offers, invitations to complimentary and informational webinars and seminars, and other information that may be of interest to you. However, by providing any of the foregoing information to you, we are not creating an attorney-client relationship between you and NFC: nor are we providing legal advice to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link in any email we send. However, this will not unsubscribe you from receiving future communications from us which are based upon an independent request, relationship or act by you.