Between hybrid work, flexible schedules, online meetings, and the ubiquity of social media, the lines between in and out of office conduct continue to get murkier and create potential tagalong liability that persists for employers who do not promptly respond to complaints brought forward by employees. The Ninth Circuit has made clear that even though an employee’s conduct is online—even outside of work time—the impact that it has on an employee can be sufficient to sustain a Title VII hostile work environment claim.
In Okonowsky v. Garland, the Ninth Circuit overturned the District Court’s granting of summary judgment in favor of the government on a Bureau of Prison employee’s Title VII claim. Lindsay Okonowsky served the Bureau as a psychologist at the Lompoc, California, federal prison complex. Steven Hellman, a Lompoc corrections officer, was tasked with the safety of inmates, as well as staff, including Okonowsky. Outside of work, Hellman created an anonymous personal Instagram page containing hundreds of posts which the court described as “overtly sexist, racist, anti-Semitic, homophobic memes that explicitly or implicitly referred to the Bureau of Prison, Lompoc staff, and Lompoc inmates.” More than 100 Lompoc employees, including high ranking individuals and the human resources manager, followed the page. Many of them liked posts and posted affirming comments. Okonowsky began following the page after her own Instagram algorithm suggested it to her. It soon became apparent to Okonowsky that she was a specific target Hellman implicitly referenced on his page. In one of the most disturbing posts, Hellman joked about threatening her with sexual assault at a staff party Okonowsky planned to host in her home.
Okonowsky complained about Hellman’s Instagram page, forwarding content to her supervisor and Lompoc’s safety manager. Her complaints were not well met, and her persistence was rebuffed. Hellman’s posts only escalated after her complaints. Once she determined Hellman was the page’s author, Okonowsky continued to share her concerns with her supervisor as her worry for her personal safety grew. In short, she feared that the very employees who were hired to assist her in an emergency in the prison would not because she was a “female joke.” Eventually, the warden assigned Hellman to another facility at Lompoc, but the posts continued. Finally, a new warden convened a Threat Assessment Team which concluded the conduct harassing and ordered Hellman to cease posting. Notwithstanding the request, the posts continued, as did Okonowsky’s complaints. Without explanation, the posts finally stopped.
The District Court dismissed the case because Hellman made the relevant posts on his own personal Instagram account outside of the workplace and the posts were not directed to, shown to, or discussed with Okonowsky. As a result, it was not severe or pervasive enough to give rise to a hostile work environment claim. The Ninth Circuit reversed, making it clear that the objective hostility of a workplace must be decided in the totality of the circumstances. It observed that social media posts do not occur in a discrete location and affirmed that if conduct (i.e., posts) occurs outside of the workplace but affects the workplace, that conduct can form the basis for a hostile work environment.
The sluggish and tepid response of the Bureau to Okonowsky’s complaints weighed significantly in the Ninth Circuit’s findings and provides some instructive takeaways for private and public employers:
- Employers should promptly respond to any complaints of harassing behavior from employees. The slower the response, the more likely that the external conduct can affect the workplace.
- If conduct occurs online and after hours but the effect of the conduct seeps into the workplace it should not be dismissed; that conduct may contribute to a conclusion of a hostile work environment.
- If an employer does determine that conduct violates its standards, it can and should take corrective (i.e., disciplinary) action—promptly and effectively. Again, a delay between the conclusion and corrective action further supports a theory of hostile work environment.
- The totality of the circumstances can include many factors, including the following:
- Likes or comments of other employees, especially if they are managers
- General posts by employees about violence or sexual discriminatory views about women
- Acquiescence or ratification of the content of posts by other employees
- The delay in response after reporting
- Whether any supervisors or managers are involved
Employers, particularly public employers, can adopt standards related to online speech outside of the office. While public employees do not forfeit their First Amendment rights, when speaking on a matter of public concern, there are some guardrails that can apply. Still, with recent rulings from the Supreme Court related to public employees and social media, this can be a fraught area for public employers and reaching out for some legal advice may be helpful.
While employers need not troll and follow their employees’ social media, they should look into potentially offensive conduct when reported. If it is established that the private or public entities’ policies were violated, an employer should respond promptly.
The content of these online posts in this case were extreme and the reaction to them dismissive, but the lesson of this case is the workplace has expanded beyond the four walls of the office and the punch of the time clock. When what happens off-the-clock affects what happens on-the-clock at work, an employer may be liable.
