The U.S. Court of Appeals for the Ninth Circuit recently ruled, in Okonowsky v. Garland, No. 23-55404, that an employer may be held liable for a Title VII hostile work environment claim based on harassing content posted on an employee’s personal social media account outside the workplace.

The ruling builds on the EEOC’s Enforcement Guidance on Workplace Harassment released earlier this year, which reminded employers that they may be liable for conduct occurring in a non-work-related context, including on social media, “when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.”

Lindsay Okonowsky, a staff psychologist in a federal prison, discovered and reported to multiple supervisors that a male corrections Lieutenant with whom she worked posted harassing content on his personal Instagram account, including sexually harassing and violent posts that referred specifically to Ms. Okonowsky. The account was followed by more than one hundred of the prison’s employees, including the Human Resources Manager, some of whom openly interacted with the offensive posts through “likes” and comments.

The Ninth Circuit rejected the district court’s finding that the social media posts occurred entirely outside of the workplace and therefore could not serve as a basis for employer liability, explaining, “[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 “[t]he Instagram page also served as a record of which co-workers subscribed to the page and commented on posts, showed their comments and their ‘likes,’ and could be seen at any time from any place in – including from the workplace.”

Given the focus of the decision and its reliance on EEOC guidance, the EEOC is certain to deploy this ruling in its pursuit of claims against employers in similar contexts going forward, particularly in cases arising outside the 9^th Circuit. Employers should ensure that their anti-harassment and social media policies are up to date and clearly address what constitutes online harassment. Training for managers and employees and mechanisms for prompt and efficient complaint investigation and resolution are also critical.