A recent federal case from California highlighted the importance of social media harassment under Title VII of the 1964 Civil Rights Act. In Okonowsky v. Merrick Garland, No. 23-55404 (U.S. 9th Circuit Court of Appeals, 7/25/24), Okonowsky was a staff psychologist working at a federal prison where a coworker was posting derogatory content about her on social media.
Specifically, a lieutenant posted sexually offensive content about work, and that she was a personal target. When Okonowsky complained about the page to prison leadership, management told her the page was “funny;” the investigator whom the prison appointed to Okonowsky’s complaint told her the page’s content was not “a problem;” and the Lieutenant began to increasingly target her with his posts in what Okonowsky reasonably perceived to be an effort to intimidate her and discourage her from making further complaints. As time passed, Okonowsky felt less and less safe at work.
Two months after Okonowsky first reported the Lieutenant’s behavior, the prison directed the Lieutenant to cease acting in violation of the prison’s Anti-Harassment Policy. The Lieutenant continued posting sexually hostile conduct for another month with no action by the prison. The Lieutenant’s conduct and the prison’s lack of a curative response to it ultimately drove Okonowsky to leave the prison in search of a different job.
Okonowsky sued the federal government for harassment. The trial court granted summary judgment to the prison, ruling that the social media posts were “entirely outside of the workplace” because they were made on a personal account and not shared or discussed with Okonowsky in the workplace.
The 9th Circuit Court of Appeals disagreed and reinstated the case. First, the court pointed out the standard for which the claim needs to overcome to continue. The court stated that Okonowsky had to present evidence from which a reasonable juror could conclude that (1) she was subjected to a sexually hostile work environment; and (2) the government is liable for the harassment that caused the hostile work environment to exist.
The court concluded that although the conduct took place outside of the physical work environment, looking at the totality of the circumstances the conduct gave rise to a hostile work environment claim. The court then found that the prison failed to follow-through when the issue was brought up again. Hence, Okonowsky raised triable issues of facts to defeat the summary judgement claim.
The court noted that 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 court further warned that “[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” and that “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.”
The EEOC’s new guidance on harassment also addresses social media activity that impacts the workplace. It may be a new world with new media used for harassment, but harassment is still harassment. Specifically, The EEOC guidance states:
“Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.”
The guidance also states that “[c]onduct that can affect the terms and conditions of employment, even if it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.”
Investigations must be taken seriously even when the conduct is claimed off premises or on the web or social media. Also, per the law firm of Holland & Knight, “HR should consider updating their anti-harassment and social media policies to address strategies for preventing harassment and other problematic online behavior to reduce workplace issues.”
By Anthony Kaylin, courtesy of SBAM-approved partner, ASE. Source: Holland & Knight 8/1/2024
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