The U.S. Court of Appeals for the Ninth Circuit has reversed a federal district court decision dismissing a female public employee's sexual harassment suit based on her male coworker's Instagram posts. The Court ruled that although the posts were not addressed, sent, or shown to the female employee, they nonetheless affected her workplace and could result in employer liability. The case is Okonowsky v. Garland, 9th Cir., No. 23-55404 (July 25, 2024).
The plaintiff worked as a staff psychologist for the Special Housing Unit (SHU) of the Bureau of Prisons' (BOP's) Federal Corrections Complex Lompoc (Lompoc). She helped determine the placement of inmates to avoid conflict and violence. Corrections officers brought inmates to and from their cells to her for appointments.
A male corrections lieutenant in the same department supervised the corrections officers who worked with the psychologist. In January 2020, the two employees disagreed on how to manage problematic inmates. The lieutenant grew frustrated at the psychologist's role and his belief that she was impeding his ability to do his job.
The lieutenant created an anonymous Instagram page that the psychologist became aware of in February 2020 when the social media platform suggested that she follow it. More than one hundred Lompoc employees, which made up about half of the page's total followers, followed the page, including the HR manager and the union president. The page contained hundreds of sexist, racist, and other blatantly offensive posts that explicitly referred to the BOP and Lompoc staff and inmates.
Many of the posts were sexually graphic and directed violence toward women in general and the psychologist in particular. One post indicated that male custody officers would sexually assault the psychologist at a scheduled social event that was to take place at her home. As staff members had "liked" the post, the psychologist canceled the event.
The psychologist reported the Instagram page to her direct supervisor and a safety manager. While her direct supervisor advised her to transfer to another facility, which she did, and directed the lieutenant's supervisor to refer the matter to BOP's Office of Internal Affairs, other supervisors and managers refused to take the matter seriously. They made several comments to that effect, including posting one on Instagram.
Several weeks later, Lompoc hired a female warden to lead a team to investigate the matter. They directed the lieutenant to take down the Instagram page and the plaintiff to stop viewing the page. After making threatening posts for another three weeks, the lieutenant finally took down the page. The psychologist transferred to a facility in Texas.
The psychologist filed a federal sex discrimination lawsuit, which the district court dismissed on summary judgment, finding that the Instagram posts did not occur within the workspace. Furthermore, the court found that the BOP took prompt corrective action.
However, the Ninth Circuit disagreed, reviving the psychologist's claim based on a finding that the workplace was not limited to Lompoc's physical environment but also included outside conduct affecting the workplace. As evidence existed that management-level employees condoned, agreed to, or reinforced the misconduct, it reversed the district court's decision and ordered that the case proceed to trial.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
