There is a common misconception that what an employee does outside the workplace, particularly on social media, is not the employer’s responsibility. Surveys have even found that most employees believe it is “unethical” for employers to view their social media accounts. Despite these views, a July ruling from the Ninth Circuit Court of Appeals, Okonowsky v. Garland, made it clear employers can and will be held liable for employees’ online activity if such activity creates a hostile work environment.
Sexual Harassment Rules Under Title VII
Title VII of the Civil Rights Act of 1964 prohibits private employers with 15 or more employees from engaging in any form of sex discrimination and provides guidance on determining when there is a sexually hostile work environment. Sexual harassment is one form of sex discrimination under the law. If the harassment creates a hostile work environment employers are liable unless sufficient remedial action is taken swiftly. When determining if there is a sexually hostile work environment, courts consider whether the plaintiff was subject to verbal or physical conduct, whether such conduct was unwelcome, and if the improper conduct was severe or pervasive enough to create a hostile work environment.
Okonowsky v. Garland – The Facts
Lindsay Okonowsky, a staff psychologist in a federal prison, discovered a male co-worker had been posting sexually offensive content directed at her to his personal Instagram account. This account was followed by over 100 fellow prison employees, including the human resources manager. For months on end, the account posted content depicting sexual harassment towards woman. Okonowsky was singled out in posts which “encouraged sexual violence against her” and used crude language. When Okonowsky brought this to the attention of her superiors she was told the account was “funny” and a brief investigation did not find the content offensive.
It took over two months from her initial complaint for the prison to act, during which time offensive content was continuously posted. The employer eventually told the employee to stop the posts as they violated the prison’s anti-harassment policy. Despite this, the posts continued for another month until Okonowsky felt so unsafe she transferred to another facility. After transferring, she sued for sexual harassment.
