Posting About Another Employee On Social Media Could Be Unlawful Harassment

Social media has truly changed our world, both in and outside of the workplace. It has evolved into a daily habit for many of us; the way we get news about the world and our friends, the way we shop, gossip, and much more. It is also, for many employees, a big part of their lives.

It should be no surprise that social media has become a major factor in numerous employment disputes. What are employees sharing? Are their posts causing offense? Are they defaming the company or engaging in online discrimination or harassment?

The main challenge with these issues is how an employer can manage conduct that frequently occurs off-site and outside of work hours. Should employers attempt to regulate such behavior? Can they control what employees say without breaching legal boundaries? What if a post qualifies as protected concerted activity under the National Labor Relations Act, or is considered protected activity or political speech? These are complex questions with no straightforward answers.

Social media is again making legal headlines with a new decision out of the influential 9^th Circuit, Okonowsky v. Garland, which held a corrections lieutenant's posts on social media about another employee, all occurring outside the workplace, could constitute unlawful harassment under Title VII. Given the frightening implications for employers – who now have to worry about what their employees are doing off duty – we did a deep dive into Okonowsky, to understand why this result was reached and what employers need to learn from this new decision.

Okonowsky v. Garland

In Okonowsky, the 9^th Circuit reviewed and reversed a district court's grant of summary judgment in favor of the employer. The 9^th Circuit held that there was clearly a triable issue of material fact whether the employee was subjected to a hostile work environment due to another worker's social media posts about her.

The core issue in Okonowsky centered on a series of inappropriate and insulting Instagram posts by a corrections lieutenant (Stephen Hellman) at a federal prison, several of which were directed at a subordinate employee in a different division of the prison (Lindsay Okonowsky). Hellman maintained a personal Instagram account that had many followers who were also employees at the prison, including members of the human resources department and supervisors tasked with investigating harassment claims. Among several troublesome posts, Hellman made comments about sexual and physical violence directed at Okonowsky, including "a crude joke depicting a cowboy figure holding two guns pointing in opposite directions, with text suggesting he would shoot both the SHU psychologist [i.e., Okonowsky] and a particular inmate" and a post suggesting that male custody officers "gang bang" Okonowsky at her home. Even after Okonowsky complained about Hellman's Instagram activity, he continued to mock Okonowsky on social media for lodging complaints about the online harassment.

When Okonowsky raised concerns about the account and his posts, no real action was taken. Okonowsky was told either that management had not seen the account, that the account was funny or that leadership did not see a problem with the account.

Because of the ongoing harassment and seemingly indifference to her complaints, Okonowsky transferred to a different facility in Texas and filed a claim against the prison for discrimination on the basis of sex.

The district court initially granted summary judgment in favor of the prison, highlighting that the social media conduct "occurred outside of the workplace." Relevant to the district court's decision, Hellman's social media posts were from a personal account, never sent directly to Okonowsky, and never displayed in the workplace. As the conduct was separate and unrelated to the workplace, the district court held that no reasonable jury could find that the social media activity created a hostile working environment.

How did the Social Media Posts Create an Objectively Hostile Work Environment?

On appeal, the 9^th Circuit faced the issue of whether a series of posts, all occurring outside of work, could create an objectively hostile work environment.

In answering yes, the 9^th Circuit considered a number of factors:

• The Court considered Hellman's status as a lieutenant at the prison, someone in a leadership role. While Hellman was not a direct supervisor of Okonowsky, he was responsible for the safety of inmates and staff, including Okonowsky, and oversaw the corrections officers who worked in Okonowsky's unit.

• The Court considered the permeating nature of social media, which creates such a wide viewing audience for online posts, even those occurring outside the workplace. The Court noted "posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the post appears. No matter where Hellman was or what he was doing when he made his posts, [prison] employees who followed the page were free to, and did, view, 'like,' comment, share, screenshot, print, and otherwise engage with or perceive his abusive posts from anywhere."

• The Court also considered that the Instagram posts were directed at, and all but named, Okonowsky.

• Finally, the Court considered the fact that nearly half of Hellman's followers were fellow employees. The clear access by supervisors, managers and co-workers to such inappropriate and demeaning social media conduct even led the prison to eventually find Hellman's conduct violated the prison's anti-harassment policy.

Given all of these factors, including such a clear record of hostile and abusive conduct, the Court concluded that the social posts and online interaction clearly could impact Okonowsky's working conditions, even if such conduct occurred outside of work. The "ubiquity" of social media and the overwhelming factual support led to the conclusion that conduct occurring both inside and outside the workplace, including on someone's personal social media, could be actionable as creating a hostile work environment under Title VII.

What Should Employers Do Now?

Okonowsky v. Garland involved particularly bad facts and a clear failure to take sufficient remedial efforts. Therefore, employers should take note of the errors in this case to prevent similar issues in the future.

1. TRAIN YOUR LEADERS - Someone in a leadership or management role should not be posting derogatory or hateful comments about any employee – period, full stop.
2. ACT ON COMPLAINTS - It does not take an HR expert to know that when an employee like Ostronsky makes a complaint, the employer must take immediate and corrective action in response to harassment allegations that the employer knew or should have known. In Okonowsky v. Garland, the Ninth Circuit enumerated the prison's failure to take immediate and corrective action, including conducting a bare investigation involving only a portion of the social media posts and looking the other way in relation to Okonowsky's complaints. Alternatively, employers should be prepared to investigate the entire range of inside and outside workplace conduct, including allegedly hostile social media posts, and promptly assure employees that their complaints are being taken seriously, not that they need to toughen up.
3. UPDATE YOUR POLICIES - Employers should also consider adding or updating their social media policies to include language regarding abusive or harassing behavior both inside and outside the workplace. Be clear: conduct or posting that is outside of work can violate the policy and subject you to discipline,  if offensive to co-workers, subordinates, independent contractors, clients and/or customers. An updated social media policy, combined with social media training, is a good step forward to limit potential liability.
   1. Also, enforce your social media polices. If there is conduct outside of work or on social media which is offensive, consider whether the employee can or should be disciplined. In so doing, be careful to consider whether this was 'protected speech' under state or federal law.
4. BE CAREFUL OF YOUR ONLINE PRESENCE - Any employee but certainly any manager should be careful as to how they personally interact with employees on social media. The 9^th Circuit took particular offense to the fact that several decision-makers followed, and sometimes even endorsed, Hellman's abusive posts, without coming to Okonowsky's aid. Employers do not need to refrain from having social media connections with employees outside of work. But, the way employers communicate, like, comment or share on social media may be relevant to whether it took prompt and thorough action to remediate claims of harassment.

What Comes Next?

Courts will likely continue to evaluate the impact of social media on discrimination and sexual harassment claims under state and federal law. While the issues in Okonowsky v. Garland appeared clear-cut, courts will be asked to consider less obvious uses of social media that may or may not constitute objective hostile work environments. For example, consider the fact pattern in Okonowsky v. Garland, but:

• What if no co-workers or superiors followed, liked and commented on the social media account posting potentially hostile or abusive content?
• What if the content of the social media posts was not directed at a single co-worker, but still offended a single co-worker or group of co-workers?
• What if the two employees were friends outside of work, the social media posts started as "jokes," but eventually went too far?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.