Employers have a duty to ensure that their workplaces are not hostile, both in the physical and virtual worlds. This responsibility extends to both actual and constructive knowledge of potential issues.

According to a 2024 Pew Research Center survey, 97% of U.S. adults own a cell phone, with 90% of those phones being smartphones. Considering there are 258.3 million adults in the U.S., that’s over 232 million Americans with smartphones in their pockets.

We rely on our cell phones for work, organization, planning, communication, learning, and entertainment. Social media, once separate from our professional lives, has become an increasingly significant presence that permeates all facets of our existence.

Given this trend, the behavior of employees on social media may become a factor that courts consider when determining whether an employer is liable for creating or permitting a hostile work environment. Such exposure can lead to liability under Title VII of the Civil Rights Act of 1964. To address this, it is in the best interest of every employer to institute an actionable and enforceable social media policy or code of conduct. This policy should foster a safe and productive work environment while minimizing the risk of a Title VII lawsuit due to inaction or inadequate action. An example of such inadequacy is described below.

Online Conduct and Title VII

In a recent decision, the Ninth Circuit Court of Appeals ruled that online conduct can be actionable in a Title VII hostile work environment claim. In Okonowsky v. Garland, No. 23-55404, 2024 U.S. App. LEXIS 18357, at *4 (9th Cir. July 25, 2024), the court reaffirmed that the totality of 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. This can also include nonsexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating. Moreover, given the ubiquity of social media and its ready use for harassment both inside and outside the workplace, online conduct can be actionable under Title VII.

The case involved Lindsay Okonowsky, a staff psychologist in a federal prison, who discovered that a corrections lieutenant, responsible for overseeing safety in her unit, operated an Instagram account followed by over a hundred prison employees. The account contained sexually offensive content about work and personally targeted Okonowsky. When she reported the page to prison leadership, her concerns were dismissed. The investigator assigned to her complaint found the page's content to be "not a problem," and the lieutenant's posts became increasingly targeted and intimidating toward Okonowsky. Despite her reports, the prison took insufficient action, leading to Okonowsky's departure from her job. She subsequently sued the Bureau of Prisons under Title VII for failing to address the hostile work environment.

Key Details from Okonowsky v. Garland

In Okonowsky v. Garland, the lieutenant's online activity included hundreds of posts that were overtly sexist, racist, anti-Semitic, homophobic, and transphobic. The posts impliedly and explicitly referred to the prison, its staff, and inmates, occasionally targeting the "psychologist"—a reference to Okonowsky. The account contained derogatory images resembling her and posts suggesting violence against women. After reporting the lieutenant, his posts became more menacing, frequently mocking the prison psychology department and denigrating women with sexually suggestive content. Okonowsky began to feel unsafe at work, fearing guards would not assist her in an emergency because they viewed her as a "female joke." Her productivity suffered, and she ultimately left the prison for safety reasons.

Okonowsky's claim in the Ninth Circuit highlighted the importance of two main factors in a Title VII sexually hostile work environment case: (1) the conduct must be verbal or physical of a sexual nature and (2) it must be sufficiently severe or pervasive to alter employment conditions and create an abusive environment. Okonowsky experienced continuous harassment, felt unsafe at work, and her performance suffered as a result. In such cases, employers must do more than issue warnings. Disciplinary actions should be incremental and progressive, with thoughtful consideration given to suspensions and terminations. If the employer fails to act upon receiving notice of hostile conditions, or if a supervisor is the offender, the employer, rather than the individual employee, becomes vulnerable to liability.

Moving Forward - Employer Responsibilities

The Ninth Circuit's decision in Okonowsky v. Garland, establishing that a federal employee’s Instagram posts targeting a coworker can form the basis of a Title VII hostile work environment claim, will likely be cited in future cases given the intertwined nature of social media and the workplace. Employers can minimize the risk of liability by developing and enforcing workplace policies that govern social media interaction both during and outside of working hours, on both private and work-related accounts.

Sir Isaac Newton’s third law of motion posits that for every action, there is an equal and opposite reaction. With Okonowsky in mind, we might add: “and a social media overreaction.” By successfully navigating employees’ interactions, employers can reduce the likelihood of such overreactions and maintain a positive work environment.