When Social Media Posts Become Workplace Harassment

The U.S. Court of Appeals for the Ninth Circuit on July 25, 2024, ruled that under Title VII of the Civil Rights Act of 1964, companies can be held liable for claims of a hostile work environment if an employee shares harassing content online that negatively impacts the workplace.

Case Summary

In Okonowsky v. Merrick Garland, the Ninth Circuit overturned a trial court's decision on summary judgment in favor of the government in a sexual harassment case brought under Title VII of the Civil Rights Act of 1964.

The case was brought by a staff psychologist working at a federal prison where she claims that her employer, the Federal Bureau of Prisons, failed to address a sexually hostile work environment created by her co-worker. The psychologist claimed that a co-worker posted derogatory content on social media. Despite reporting this to her employer, the co-worker continued to post even after being directed to stop in accordance with the prison's anti-harassment policy. The psychologist eventually resigned due to the lack of action and filed the lawsuit.

The trial court granted summary judgment to the prison, ruling that the social media posts were "entirely outside of the workplace" because they were made on a personal account and not shared or discussed with plaintiff in the workplace. The court found that since the posts did not constitute severe or frequent harassment within the physical workplace, there was no triable issue regarding whether the plaintiff's work environment was objectively hostile.

The Ninth Circuit disagreed with the trial court and found that online social media contact can constitute workplace harassment. The court noted that it "rejected" 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." The court further warned that "[s]ocial media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear" and that "even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee's working environment." The Ninth Circuit sent the case back to the trial court.

The Ninth Circuit's decision is consistent with recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC) on sexual harassment and the use of social media accounts by employees. It reads in part: "Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment." The EEOC also noted that "[c]onduct that can affect the terms and conditions of employment, even if it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace."

Key Takeaways

• Companies should conduct thorough investigations into any employee claims of a hostile work environment (whether based on sex, race, origin or any other protected classification), including complaints about co-workers' social media posts. In addition, companies should train employees in managerial positions on how to handle such claims.
• Companies should consider updating their anti-harassment and social media policies to address strategies for preventing harassment and other problematic online behavior to reduce workplace issues.

For more information on this topic, please contact the authors or your Holland & Knight attorney.

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