In the past, employers were generally comfortable drawing a bright line between what employees did on their own time outside of the workplace and conduct that occurs at work. However, employers and HR managers may need to reassess how they approach workplace harassment claims as a result of the virtual world in which today’s workforce operates. This is particularly true with the advent and proliferation of social media. A recent Ninth Circuit Court of Appeals decision involving outside-of-work social media posts giving rise to a sexually hostile work environment claim demonstrates this point.
In Okonowsky v. Merrick Garland, the Ninth Circuit recently overturned a trial court’s decision on summary judgment in favor of the employer in a sexual harassment case brought under Title VII of the Civil Rights Act of 1964. The Ninth Circuit ruled that under Title VII, employers can be held liable for claims of a sexually hostile work environment if an employee shares sexually hostile and harassing content on their personal social media that negatively impacts the workplace.
The case was brought by a staff psychologist working at a federal prison in California. The psychologist claimed that her employer, the Federal Bureau of Prisons, failed to take adequate measures to address a sexually hostile work environment created by her co-worker, a corrections Lieutenant with whom the psychologist worked and who was responsible for overseeing the safety of guards and prison staff in the psychologist’s unit. The psychologist claimed that the Lieutenant operated an Instagram account that contained hundreds of sexually offensive posts about work, many of which were overtly sexist memes that explicitly or implicitly referred to prison staff and inmates. Notably, many of the sexually harassing posts or comments on the Instagram page referred to the psychologist specifically, meaning she was a personal target. The Instagram page was followed by more than 100 prison employees, including many of the psychologist’s coworkers, prison senior management, the Human Resources Manager, and the Union President.
The Ninth Circuit observed that most of the derogatory posts were too graphic and disturbing to republish. The posts were vulgar, suggestive of rape and physical harassment, and depicted scenes of not only sexual violence against women in general, but also against the psychologist in particular. For example, on one occasion, the Instagram page joked about the male prison officers performing sexual acts on the psychologist at her home, which was liked by some prison staff members.
When the psychologist complained about the page to prison leadership, management told her the page was “funny”; the investigator whom the prison appointed to investigate her complaint told her the page’s content was not “a problem.” After the psychologist voiced her complaints to her superiors, the Lieutenant began to increasingly target the psychologist in his posts in what the psychologist reasonably perceived to be an effort to intimidate her and discourage her from making further complaints. Two months after the psychologist first reported the inappropriate posts on the Instagram page, the prison directed the Lieutenant to cease acting in violation of the prison’s anti-harassment policy. However, the Lieutenant continued posting sexually hostile content for another month with no action by the prison. The psychologist eventually resigned due to the Lieutenant’s conduct and alleged lack of action by the prison, and she subsequently filed a lawsuit.
The trial court granted summary judgment to the prison, ruling that the Instagram posts were “entirely outside of the workplace” because they were made on an employee’s personal social media account, and none of the posts were ever sent to the psychologist, displayed in the workplace, shown to the psychologist in the workplace, or discussed with her in the workplace without her consent. The district court concluded that there was no triable issue as to whether the psychologist’s work environment was objectively hostile because, in its view, the social media posts in question did not amount to severe or frequent harassment in the physical workplace.
The Ninth Circuit disagreed. It found that online social media content on an employee’s personal account can constitute workplace harassment if it has consequences at work, even if the social media activity occurs outside of the physical workplace. Specifically, it rejected 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.” The Ninth Circuit further warned that “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment”. The Ninth Circuit reversed the district court’s award of summary judgment in the prison’s favor and remanded the case for trial. A copy of the Ninth Circuit’s opinion can be found here.
The Ninth Circuit’s decision is consistent with recent guidance from the EEOC on the use of social media accounts by employees and the possibility that social media conduct can create a hostile work environment if it impacts the workplace, regardless of whether it occurs in a work-related context.
Key Takeaways from this Decision
- Employers should thoroughly investigate employee claims of a hostile work environment. No doubt, the prison’s initial response to the psychologist’s complaints about the Instagram page was inadequate. Based on the Ninth Circuit’s description of the events leading to the psychologist’s lawsuit, the Court had serious doubts about whether the prison’s leadership took her complaints about the offensive posts on her coworker’s Instagram page seriously.
- Employers should train managers and supervisors on how to handle claims involving social media. HR employees should also be sure to review social media accounts when investigating hostile work environment claims made by employees. Even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employees’ working environment. As the Ninth Circuit noted in this case, “[g]iven that many employees in today’s world occasionally use or view personal social media from work, a factfinder could infer from the record that the alleged wrongdoer’s harassing conduct did not ‘occur’ entirely outside of the [physical workplace].”
- Employers may have an obligation to take corrective action depending on the severe and pervasive nature of the conduct, including outside-of-work social media posts. If comments made between employees at the water cooler would be found to violate an employer’s harassment and discrimination policies, then the exact same comments made on social media between the employees may reach the same result. According to the Ninth Circuit, conduct that occurs outside of the workplace can be considered as part of a hostile work environment claim.
- Employers should consider updating their HR anti-harassment and social media policies to address the prevention of harassment and other inappropriate online behavior to reduce workplace issues. Employers must have comprehensive anti-harassment and social media policies that make clear harassing, threatening, and offensive social media content on personal accounts can constitute workplace harassment. Today’s workforce operates in an increasingly virtual world, and anti-discrimination policies should reflect that reality.
- Managers and supervisors need to think long and hard before connecting with subordinates on social media. In this case, the Ninth Circuit was very troubled by the number of the psychologist’s coworkers who followed the Instagram account, including members of prison leadership and the HR Manager. According to the Ninth Circuit, any evidence of “management-level intra-working ratification of or acquiescence to offsite conduct by employees, customers, or third parties can be particularly relevant to both the hostile work environment and employer liability elements of a Title VII claim”.
ThompsonMcMullan attorneys are available to discuss the implications of employee social media posts on your work environment and provide guidance on how to navigate workplace harassment claims resulting from such posts. Contact us today to discuss further.
