Hey Employers – Workplace Harassment Can Occur Through Personal Social Media Postings!
Some employers turn a blind eye to what happens outside the workplace – after all, that is the employee’s own time. And we cannot/should not control what employees do outside the workplace, right? Including personal social media activity, right? Unfortunately for those employers, that kind of thinking can land them in trouble, and a recent case from the U.S. Court of Appeals for the Ninth Circuit highlights that point.
Background of the Case. In Okonowsky v. Garland, a staff psychologist in a federal prison found out that a corrections lieutenant had posted sexually offensive content on his Instagram account, and that she was a target. Prison leadership initially dismissed her repeated complaints, telling her that the page was “funny” and that she needed to toughen up or get a sense of humor. Two months later, after he increasingly targeted her, the lieutenant was finally told to stop violating the prison’s anti-harassment policy. But his postings continued for another month without action from the prison, eventually driving the psychologist to leave. She then sued the Bureau of Prisons for sexual harassment in violation of Title VII.
Sexual Harassment Under Title VII. There are three factors in determining whether there was a sexually hostile work environment under Title VII: whether the plaintiff was subject to verbal or physical conduct of a sexual nature; whether the conduct was unwelcome; and whether the conduct was sufficient severe or pervasive to alter the conditions of employment and create an abusive working environment. This last factor requires a showing that the work environment was both objectively (to a reasonable person) and subjectively (to the plaintiff) hostile. Courts look to the totality of the circumstances in analyzing objective hostility, which includes the frequency and severity of the conduct, whether it was physically threatening or humiliating, and whether it unreasonably interfered with the employee’s work performance.
The Lower Court’s Decision. The federal district court threw out the case. In reviewing the postings, the court looked only at five posts that it determined to have targeted the psychologist because of her sex, and it found that the posts occurred entirely outside the workplace – they were made on the lieutenant’s personal Instagram page and they were not sent to the psychologist or shown to her in the workplace. The federal district court also found that the Bureau took reasonable and prompt corrective steps to end the harassment – “a methodical, albeit relatively lengthy investigation,” reassigning the lieutenant to another part of the prison, convening a Threat Assessment Team to evaluate the situation, and issuing the cease-and-desist letter.
The Ninth Circuit’s Decision. On appeal, however, the Ninth Circuit reversed the federal district court’s decision. It pointedly noted that “it makes little sense to describe a social media page that includes overt comments about a specific workplace … as ‘occurring’ in only a discrete location” (meaning outside the workplace). Such posts are “permanently and infinitely viewable and re-viewable” and others, including co-workers, can view and engage with these posts from anywhere, including from the workplace. Moreover, the Ninth Circuit noted that “wholly” offsite conduct can have the effect of altering the working environment, and the employer’s response to that effect “can be particularly relevant to both the hostile work environment and employer liability elements of a Title VII claim.” More specifically, the Ninth Circuit flatly stated, “We … 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.”
Against that analytic background, the Ninth Circuit found that there was evidence the Bureau failed to take reasonably prompt and effective steps to address conduct that plainly violated Bureau policies, and the Bureau’s lack of action signaled to the psychologist that it had no intention of protecting her from the lieutenant’s harassment. The Ninth Circuit further found that the district court improperly limited its consideration of the lieutenant’s posts to those that sexually targeted the psychologist. Under Ninth Circuit precedent, the totality of circumstances in a sexual harassment claim may include sexually harassing conduct that does not expressly target the plaintiff as well as non-sexual conduct targeted to the plaintiff that a jury could find retaliatory or intimidating.
Lessons for Employers. Employers must recognize that conduct occurring outside the workplace – including social media activity – can create a hostile work environment. It is critically important that if an employer becomes aware of “outside” conduct that can impact working relationships, it take prompt and effective action to address it.
