Social Media Creating a Hostile Work Environment: What To Know Following Okonowsky v. Garland

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Misuse of social media among coworkers can create a hostile and toxic work environment that can lead to employer liability if not addressed. In Okonowsky v. Garland, Case No. D.C. 2:21-cv-07581-VAP-AS (Jul. 25, 2024), the Ninth Circuit ruled that employers can be held liable for claims of hostile work environment under Title VII if an employee shares content on a personal social media account that negatively impacts the workplace. Unsurprisingly, Okonowsky aligns with recent Equal Employment Opportunity Commission (EEOC) guidance, issued April 29, that discusses the ways in which employee social media use outside of the workplace can contribute to a sexually hostile work environment.

Factual Background

The case was brought by a female staff psychologist working for Federal Bureau of Prisons. She claimed that a male supervisor, who oversaw the guards responsible for maintaining order in the prison, ran an Instagram account that he used to post sexually harassing and violent content. The plaintiff alleged that when she complained, her employer did not take her complaints seriously and failed to remedy the hostile work environment created by her co-worker's derogatory social media use.

Although the Instagram account was the co-worker's personal account, and the interactions on the account arguably occurred "outside of work," the account was followed by hundreds of employees of the prison, including the guards he supervised and the prison's human resources manager. The co-worker made hundreds of posts, many of which were overtly sexist, racist, anti-Semitic, homophobic, and transphobic memes that explicitly or impliedly referenced the Bureau of Prisons and the prison where the plaintiff and her co-worker worked. The plaintiff reported the offensive social media use to her employer and was advised to stop following the account. The employer also directed the co-worker to stop posting offensive content on his account. The co-worker did not stop. Instead, he posted more frequently and began using the sexually derogatory memes and violent language to target the plaintiff. The plaintiff was not only offended and belittled but afraid for her safety while at work. The co-worker was transferred to another facility, but the online harassment did not stop. The plaintiff ultimately resigned and filed a lawsuit.

The employer filed a motion for summary judgment, which the trial court granted. The trial court ruled there was no triable issue on whether the plaintiff's work environment was objectively hostile because the conduct occurred "entirely outside of the workplace" and was never discussed in the workplace with the plaintiff. Notably, the trial court excluded from evidence all but five of the Instagram posts. The plaintiff appealed.

On appeal, the Ninth Circuit reversed the trial court's decision, finding that online social media posts can support a workplace harassment claim. The court rejected the contention 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." This holding generally aligns with the requirement that hostile work environment claims be analyzed considering the totality of the circumstances and the impact on the work environment. In its analysis, the court recognized that simply unfollowing the account would not resolve the issue for the plaintiff. The court emphasized the permanent nature of social media posts and the possibility that the harassing posts could be accessed in perpetuity.

While important and certainly the first of its kind, this decision is not entirely unexpected. The Ninth Circuit's decision is consistent with EEOC guidance on the use of social media accounts by employees and the possibility that social media presence can create a hostile work environment.

The Importance of Okonowsky

It is essential that employers have comprehensive anti-harassment and social media policies that make clear harassing, threatening, and derogatory social media interactions can constitute workplace harassment. Employers should also train managers and supervisors on how to handle claims involving social media. Managers and supervisors need to think long and hard before connecting with subordinates on social media. Managers and supervisors should think longer and harder before posting or sharing any content that touches upon categories protected under the law. Human resources employees should also be sure to include social media accounts while investigating employee claims of hostile work environment.

• Morgan Forsey

  Partner
• Daniel J. McQueen

  Partner
• Alex Rafuse

  Associate, he/him/his