Seyfarth Synopsis: The Ninth Circuit has held that harassing conduct that takes place outside of the physical workplace can constitute workplace harassment.
In the case of Okonowsky v. Garland, 23-55404.pdf (law360news.com), the Ninth Circuit considered a claim that social media posts made by a co-worker on a personal account constitute actionable workplace harassment under Title VII. The appeals court firmly "reject[ed] 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."
Lindsay Okonowsky was employed as a psychologist by the federal Bureau of Prisons at a correctional facility in Lompoc, California. As the Special Housing Unit ("SHU") psychologist, Okonowsky worked with custody staff to determine where inmates would be housed within the SHU so as to avoid conflict and violence among the inmates in the Unit. Okonowsky also relied on SHU custody officers to transport inmates from their cells to their clinical appointments with her and protect her in those interactions with inmates.
Steven Hellman, a corrections Lieutenant at the SHU at Lompoc, supervised custody staff in the SHU. Hellman and Okonowsky's jobs occasionally required them to collaborate or, at a minimum, to work side-by-side in the SHU. Around January 2020, Hellman and Okonowsky had apparent disagreements over how to manage "difficult inmates" in the SHU, and Hellman also became frustrated with Okonowsky.
During this time, Hellman created a social media account called "8_and_hitthe_gate." The page was followed by more than one hundred Lompoc employees, including the Human Resources Manager, the Union President, and a member of the prison's Special Investigative Services. Approximately half or more of the followers of the page were Lompoc employees. Okonowsky eventually discovered the account and saw posts that referred to the psychology department or "the psychologist" at SHU, including some posts that containing derogatory images resembling her likeness. Okonowsky understood these posts to refer to her specifically.
Some of the posts Okonowsky saw on Hellman's account displayed or suggested violence against and/or sexual contacts with women co-workers or violence against women generally. These posts were graphic, suggestive of rape and physical harassment, and depicted scenes of violence against women in general, but also against "the SHU psychologist" in particular. The Ninth Circuit specifically noted that "[m]ost of the posts are too graphic and disturbing to republish here," but recounted one in which Hellman joked that his subordinates – all male custody officers — would "gang bang" Okonowsky at her home during an end-of-the-quarter celebration she had scheduled at her home (before discovering the "8_and_hitthe_gate" account). Okonowsky cancelled the gathering once she saw this post.
Okonowsky made a number of complaints about the posts on the "8_and_hitthe_gate" account over a period of months. Frustrated over what she perceived as a lack of response and concern for her safety by the Bureau of Prisons, Okonowsky transferred to a facility in Texas. She subsequently filed suit against the Bureau, asserting a single claim of sex discrimination under Title VII of the Civil Rights Act of 1964.
A federal district court judge in California granted summary judgment to the Bureau. The district court concluded that judgment should be entered in the Bureau's favor because the posts before it "occurred entirely outside of the workplace" on a staff member's personal social media account and were never sent directly to Okonowsky, displayed in the workplace, shown to Okonowsky in the workplace, or discussed with Okonowsky in the workplace without her consent. Therefore, the district court concluded that there was no triable issue of fact that Hellman's social media posts constituted severe and pervasive workplace harassment.
Okonowsky appealed. On appeal, since the parties did not dispute the first two elements of an actionable claim for a sexually hostile work environment (i.e., that Okonowsky was subjected to verbal or physical conduct of a sexual nature and that it was unwelcome), the Ninth Circuit focused its attention on the third element: whether or not Okonowsky had "adduced evidence of sufficiently severe or pervasive sexually offensive conduct from which a reasonable juror could conclude that Okonowsky's work environment was objectively hostile from the perspective of a reasonable juror." In doing so, the Ninth Circuit looked to "the totality of the circumstances" surrounding Okonowsky's claim.
The government contended before the appeals court that Okonowsky had failed to establish an objectively hostile work environment because the social media posts considered by the district court "occurred entirely outside of the workplace." The Ninth Circuit rejected the government's position as "grounded on legally and factually erroneous assumptions." The appeals court held that, given "[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. . . it makes little sense to describe a social media page that includes overt comments about a specific workplace, like Hellman's, as 'occuring' in only a discrete location." In other words, social media posts cannot be viewed as occurring strictly outside of the workplace because they can be seen at any time from any place, including from the workplace. The appeals court emphasized that the "crucial inquiry" was not "whether Hellman posted from work or his co-workers interacted with his page while at work, but whether his and his co-workers' discriminatory conduct had an unreasonable effect on Okonowsky's work environment."
Applying this standard, the Ninth Circuit concluded that "offsite and third-party conduct can have the effect of altering the working environment in an objectively severe or pervasive way" because "even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee's working environment," which in this case it clearly did.
The Ninth Circuit's holding is an additional piece of the complex compliance puzzle facing employers when it comes to addressing the impact of personal social media posts in the workplace. The holding in Okonowsky makes crystal clear that employers cannot risk sticking their heads in the sand when employees complain about bullying or harassing posts they have seen on co-workers' personal social media accounts. However, in addition to the responsibility employers have to promptly and effectively address workplace harassment and take corrective action, they have some significant legal restrictions to keep in mind as they act in these situations.
First, a handful of states have laws that prohibit employers from taking action against employees for engaging in lawful off-duty conduct. A post might be offensive and violate a workplace anti-harassment policy, but might not be illegal. Second, there is the issue of obtaining access to the personal social media account at issue in connection with an investigation. More than half of the states in the U.S. have social media privacy laws that restrict an employer's access to non-public posts on personal employee social media accounts. However, most of these laws have exceptions that allow for employee access in the event of an investigation into workplace misconduct. The Ninth Circuit's holding in Okonowsky provides grounds for an employer to take the position that postings on a personal social media account can constitute workplace harassment and therefore violate an employer policy against harassment. (Whether or not this interpretation of the term "workplace misconduct" as used in state social media privacy laws will be carry the day remains to be seen.) Third, employers must also comply with state and federal laws concerning access to stored electronic communications when looking at employee social media posts. The federal Stored Communications Act and state law equivalents place restrictions on an employer's ability to access communications in electronic storage, like social media posts.
In light of the holding in Okonowsky, employers should ensure that their anti-harassment policies make clear that they will not tolerate harassing, threatening, and derogatory social media interactions between co-workers even if they take place on personal social media accounts. Employers should also ensure that any anti-harassment training they conduct covers this issue and provide supervisors with the tools they need to respond appropriately to concerns raised about social media posts by employees. With employees connecting and communicating online "outside" of the workplace through myriad social media platforms and group messaging apps, employers must be ready to address harassment that seeps into the workplace through these channels. The Ninth Circuit's holding in Okonowsky makes it clear that employers who fail to address alleged harassment through personal social media postings do so at their own peril.
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