In a recent case in the U.S. Court of Appeals for the Ninth Circuit, Okonowsky v. Garland (No. 23-55404) (Jul. 2024), the appeals court reviewed an appeal by a plaintiff from the district court's granting of summary judgment to the defendant employer.
The case involves alleged sexual harassment of a federal prison staff psychologist by a corrections lieutenant. The plaintiff discovered the defendant had posted sexually offensive content on his Instagram account and that she was the target.
She reported the behavior. Initially, prison leadership dismissed her repeated complaints, telling her that the social media posts were "funny" and that she needed to "toughen up or get a sense of humor".
After two months, management told the defendant to "stop violating the prison's anti-harassment policy". However, the social media postings continued for another month without any further action from the employer. This, eventually, caused the psychologist to quit. She then sued the defendant and the Bureau of Prisons for sexual harassment in violation of Title VII.
The district court had granted summary judgment for the employer because the social media posts occurred entirely outside the workplace on the defendant's personal Instagram page, and because they were not sent to the plaintiff or showed to her in the workplace, the steps the employer took were reasonable and appropriately corrective. The employer had a lengthy investigation that eventually resulted in the defendant's reassignment to another section of the prison.
The appeals court disagreed with the grant of summary judgment, reversed the district court, and sent the case back for further litigation. The plaintiff "has raised triable issues of fact as to whether she experienced a hostile work environment and whether the Bureau of Prisons failed to take prompt and effective remedial action to address it."
The appeals court explained that "it makes little sense to describe a social media page that includes overt comments about a specific workplace … as 'occurring' in only a discrete location" (meaning outside the workplace). It added that such posts are "permanently and infinitely viewable and reviewable." Other people, including coworkers can view and engage with these posts from any location including the workplace.
The Ninth Circuit stated that "wholly" offsite conduct can have the effect of changing the work environment, and the employer's response to that effect "can be particularly relevant to both the hostile work environment and employer liability elements of a Title VII claim."
The Ninth Circuit said, "We reject the notion 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."
Fiona W. Ong "Hey Employers – Workplace Harassment Can Occur Through Personal Social Media Postings" https://shawe.com/articles/hey-employers-workplace-harassment-can-occur-through-personal-social-media-postings/ (Jul. 31, 2024); https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/25/23-55404.pdf
Commentary
From this case, managers are reminded that a hostile work environment can result from behaviors outside the workplace, and a common outside source of sexual harassment is social media postings.
In a 2023 survey by Forbes, "a study of 51 countries revealed 38 percent of women had personally experienced online harassment" and only 25 percent reported it. Another study, by the Pew Research Center, with U.S. data alone, revealed "young women are particularly likely to have experienced sexual harassment online. Fully 33% of women under 35 say they have been sexually harassed online, while 11% of men under 35 say the same."
Another lesson from this case is the importance of managers reporting alleged harassment promptly to those who are authorized to conduct an investigation. Unless that investigation is thorough, prompt, and objective, and results in effective preventative actions, it may not assist an employer in defending a sexual harassment claim, as in this case.
