Picture this: You're packing up your office, getting ready to head home for the evening, when your human resources manager peaks her head in. She explains that she has just fielded a complaint from a female employee: a male co-worker is running a social media account where he routinely makes sexist posts and occasionally references his female colleagues. While disturbing, your HR manager insists that the allegations cannot arise to a hostile working environment because the social media activity occurs outside of the workplace and after work hours. Is your HR manager correct? According to a recent Ninth Circuit Court of Appeals decision, she could be wrong.
Background
In Okonowsky v. Garland, a psychologist in a federal prison discovered that a co-worker was operating a social media account followed by more than 100 fellow employees.1 Upon discovering this account, Ms. Okonowsky learned that her co-worker had posted sexually offensive content about work, and she was occasionally a personal target.
In response, Ms. Okonowsky sued her employer under Title VII of the Civil Rights Act of 1964, claiming that her employer failed to take adequate measures to address a hostile work environment.
The Decision
On appeal, the Ninth Circuit rejected the district court's decision that the social media posts occurred entirely outside the workplace, and thus could not have contributed to a hostile work environment. The Ninth Circuit explained that "it makes little sense to describe a social media page" as occurring solely outside of work because social media posts are "permanently and infinitely viewable and re-viewable by any person with access to the page," and employees can "comment, share, screenshot, print, and otherwise engage with or perceive" social media posts from anywhere—including while at work.
Furthermore, the court held that even if discriminatory or harassing conduct occurs wholly offsite, an employer may be liable for such conduct to the extent it affects an employee's working environment. The court explained that such a ruling was required, "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."
Employer Takeaways
The Ninth Circuit has made clear that the misuse of social media accounts by employees can create a hostile work environment that can lead to employer liability. This decision is immediately binding on employers in the following states: California, Arizona, Oregon, Washington, Idaho, Montana, and Hawaii. Furthermore, the Ninth Circuit's decision is consistent with recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC) warning employers nationwide that conduct on social media platforms outside of work can contribute to a hostile work environment.
Given the Ninth Circuit's decision and the EEOC's heightened scrutiny on this issue, employers, in consultation with counsel, should consider:
- Revising and amending employee handbooks, anti-harassment policies, and social media policies to make sure they are compliant with existing law and explicitly address online harassment
- Providing new and updated training for supervisors and human resources personnel on how to appropriately respond to hostile work environment complaints involving social media and other online behavior and
- Modifying internal procedures to ensure that when hostile work environment complaints are investigated, such investigations are well documented
Footnote
1. 109 F.4th 1166, 1171 (9th Cir. 2024).
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