Social Media Posts may now create a Hostile Work Environment

The workplace is no longer simply a physical location. With the advent of social media, remote work and the interconnectedness of everyday life, there has been an expansion of the workplace. Where are those lines drawn and where does the outside world seep into the protected environment of employment? The question of the role of social media and extension of employer’s duty to protect its employees comes into focus with a recent case. In the case of Okonowsky v. Garland, the Court of Appeals of the Ninth Circuit set forth into motion an extension of protections under Title VII of the Civil Rights Act. The Court’s decision to reverse and remand a summary judgment decision puts a focus on the future of workplace discrimination and the extension of a hostile work environment to include actions by employees that take place on social media sites.

??????????????? The case between a prison psychologist, Lindsay Okonowsky, and her employer, the Federal Bureau of Prisons, centers around the actions and Instagram posts of a custody officer, Lieutenant Steven Hellman, who was in charge of keeping staff and inmates safe. Within the workplace, the psychologist and the lieutenant had disagreements regarding the handling of inmates. None of this would have been of consequence except when Ms. Okonowsky discovered an Instagram account that was followed by many of her co-workers at the Federal Bureau of Prisons.

The Instagram account contained postings that were sexually aggressive and had suggestive content that indirectly referenced the psychologist and other work incidents. Due to the nature of the posts, Ms. Okonowsky reported the behavior. However, this behavior continued beyond the plaintiff’s complaints and action was not taken to put a stop to the account. Reports to the proper channel did not turn into action from human resources or management. The posts eventually led to the Plaintiff transferring to a different unit and eventually leaving the facility all together. The question that the Ninth Circuit believed worth asking was if behavior that does not take place in the physical workplace is sufficient to create an actionable hostile work environment that is protected under Title VII, especially when the employer is on notice of same and took no remedial or corrective action.

On appeal, the Ninth Circuit reversed the decision of the court below to grant summary judgment in favor of the federal government on the grounds that the issues of the case should proceed to trial. The Ninth Circuit held that the trial judge erred in deciding that only conduct that occurs within a physical workplace can be actionable in creating a hostile work environment. In particular, the Ninth Circuit focused on the role of social media, its pervasive nature and the impact that its omnipresence can have in creating an unsafe space at work. Further the decision extended the onus of an employer in remedying the situation to include actions that reestablish the safety of the victim.

The ruling of the Ninth Circuit court is not an excuse to invite employers into the private life of their employees but rather the Court noted that the behavior in this case was so targeted that ignoring its impact at the workplace would create the environment that Title VII sought to combat. The postings were not just the opinions of a solitary actor expressing political or personal views. Rather, the posts were intended to demean a coworker based on incidents that occurred within the workplace. In this case, the hostile work environment was created by the actions of the Lieutenant and the purported inaction of the employer.

The Court made it clear that it was up to a jury to determine if the action of the employer was enough to end the hostile work environment. In this case, the Court noted that assigning a party to investigate the matter and the eventually creation of a taskforce to investigate the Instagram account was not sufficient. The Court stated that a jury could reasonably believe that the inaction of the employer was encouraging the action and at the very least insufficient in curbing the behavior. The Court took notice of prior rulings that ?made it clear that an employer must be actively involved in ending the actions that create the environment complained about by the victim. This action must be taken in a timely fashion and it must be effective in ending the behavior.

The expansion of the workplace to now include the larger environment created by social media opens the protections of Title VII. The decision ends the supposition that employers do not have a duty to prevent a hostile work environment from actions occurring outside of the immediate workplace. Protecting employees from abusive behavior on social media is now something employers very much have to be cognizant of.

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