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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.

 

 

Lower Court Decision

The federal district court dismissed the case having only looked at the five Instagram posts which specifically targeted the plaintiff. The court reasoned that the Bureau of Prisons had not violated Title VII as the posts were outside the workplace, they were not shown to Okonowsky in the workplace, and prompt action had been taken to end the harassment. The Prison had reassigned the account’s owner to another part of the prison, created a team to evacuate the situation, and issued a cease-and-desist order.

Appeal to the Ninth Circuit Court

The Ninth Circuit Court of Appeals took a different view, reversing the lower court’s decision. The court pointed out the Instagram posts are “permanently and infinitely viewable and re-viewable” meaning that although posted outside of the workplace they could be viewed in the workplace. The court went on to reject “the notion that only conduct that occurs inside the physical 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.” As such “wholly offsite” conduct could still “affects the employee’s working environment.”

The appellate court also found the prison had not taken prompt or effective action to address the harassment. The court considered all of the posts, not just those which specifically targeted Okonowsky, when making its decision.

Equal Employment Opportunity Commission (EEOC) New Guidance  Was Considered

This is one of the first cases to apply the EEOC’s 2024 Guidance on Harassment in the Workplace. Much of the guidance was echoed in the ruling; however, the guidance further reveals that “electronic communications” other than social media made on private phones and computers can contribute to a “hostile work environment.” Based on recent US Supreme Court decisions, it would be interesting to see if the Court found the Guidance beyond the authority of the EEOC. If this case is appealed to the Supreme Court, we may find out.

What Employers Need to Know

Employers must act promptly if an employee’s conduct outside the workplace is harmful to the work environment. If appropriate action is not taken quickly employers may be liable. Okonowsky’s attorney, and the Guidance, suggest having “social media policies that prevent the type of behavior” seen in this case. While employers are not liable for such conduct that is unknown to them (and shouldn’t be known to them), once the conduct surfaces, action must be taken. While this case focuses on sex harassment, there is no reason to expect a difference result if the issue is discrimination based on any other protected categories under Title VII such as race, color, religion, and national origin.

Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560