On July 25, 2024, the U.S. Court of Appeals for the Ninth Circuit rejected the notion that harassing conduct must occur inside the workplace to be considered actionable. The court also affirmed the notion that “the totality of the circumstances in a Title VII sexually hostile work environment claim includes evidence of sexually harassing conduct, even if it does not expressly target the plaintiff, as well as evidence of nonsexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating.”

The case of Okonowsky v. Merrick Garland was brought by a staff psychologist (“Ms. Okonowsky”) working at a federal prison. Ms. Okonowsky alleged a co-worker posted derogatory content on a personal Instagram page that specifically targeted Ms. Okonowsky. Ms. Okonowsky reported the allegedly harassing conduct to her employer on multiple occasions, but the employer, she claimed, failed to prevent the co-worker from posting the offending content. Ms. Okonowsky eventually resigned from the prison due to the continued social media posts and perceived lack of response by the prison.

Ms. Okonowsky sued the prison for sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court for the Central District of California granted summary judgment to the government based in part on the grounds that the social media posts “occurred entirely outside of the workplace” and because none of the posts were sent to Ms. Okonowsky or displayed in the workplace. The court determined that because the posts “did not amount to severe or frequent harassment in the physical workplace . . . there was no triable issue as to whether Okonowsky’s work environment was objectively hostile.”

The Ninth Circuit disagreed and found that online social media posts can be considered as part of the “totality of circumstances we evaluate when considering a hostile work environment claim.” The court stated that the relevant standard requires the court to “assess whether harassing conduct had an unreasonable effect on the working environment and, if so, to consider whether and how the employer responded to that effect.” Applying that standard, the court stated that “offsite and third-party conduct can have the effect of altering the working environment in an objectively severe or pervasive manner[,]” especially given the “ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.”

After reviewing the evidentiary record, the Ninth Circuit reversed the district court’s grant of summary judgment to the government, noting that a reasonable juror could conclude that Ms. Okonowsky was subject to a sexually hostile work environment and that the prison failed to take prompt remedial action to address it.

In holding as it did, the Ninth Circuit effectively agreed with one new component of the EEOC’s harassment guidance contained in the Enforcement Guidance on Harassment in the Workplace, issued on April 29, 2024.  Among other things, that Enforcement Guidance provides that even conduct that “does not occur in a work-related context” can affect the terms and conditions of employment.  The EEOC used, as examples, electronic communications using private phones, computers and social media accounts as potentially problematic if they negatively affect the workplace.  

Given the above, employers will want to consider updates to their anti-harassment and social media policies to include discussion of how social media posts and activity can violate harassment/discrimination policies, even if occurring outside the workplace.