By Geoffrey A. Lindley
[E]ven if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.
Okonowsky v. Garland, 2024 U.S. App LEXIS 18357 at *29 (9th Cir. 2024).
Hostile Work Environment
Employees often use the term “hostile work environment” to describe many things that may upset them about their workplace. However, the phrase “hostile work environment” is a legal term of art denoting a particular type of legal claim – one where an employee is subjected to an intimidating, hostile, or offensive work environment based on a protected class. (Remember that offensive behavior in the workplace that is not based on a protected class does not violate Title VII of the Civil Rights Act of 1964, as Title VII is not a general civility code. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). In 1986, the United States Supreme Court explicitly recognized that a hostile work environment based on sex violates Title VII. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). But what does it mean to create a hostile work environment based on sex? The United States Court of Appeals for the Ninth Circuit recently had the opportunity to address whether social media posts made outside of work can give rise to a legally actionable hostile work environment.
Social Media at Work
Social Media Posts Lead to a Lawsuit
Lindsay Okonowsky, a female, was hired to work as a staff psychologist at the Bureau of Prison’s (BOP) Federal Correctional Complex in Lompoc, California (Lompoc) in September 2018 and was assigned as the psychologist for the Special Housing Unit (SHU). Okonowsky v. Garland, 2024 U.S. App LEXIS 18357 at *4-*5 (9th Cir. 2024). Okonowsky’s position required her to work with custody staff on inmate cell assignments and in scheduling inmate appointments with her. Id. at *5.
Steven Hellman worked as a corrections Lieutenant at Lompoc. While he had no supervisory authority over Okonowsky, he did supervise custody staff and was responsible for the safety of inmates and staff, including Okonowsky. Their jobs required them to work together. Id. at *6.
In February 2020, Okonowsky became aware of an Instagram page that mentioned Lompoc staff and inmates when her personal Instagram account “suggested” that she follow the page. The relatively new page already had “hundreds of posts, many of which were overtly sexist, racist, anti-Semitic, homophobic, and transphobic memes that explicitly or impliedly referred to the Bureau of Prisons, Lompoc staff, and Lompoc inmates.” About half of the page’s followers were “more than one hundred Lompoc employees, including the Human Resources Manager, the Union President, and a member of the prison’s Special Investigative Services.” Id. at *7.
The information contained in the posts strongly suggested that they came from a Lompoc employee. And not only did he post reference violence against women, including physical harassment and rape, but they also specifically referenced Okonowsky. For example, prior to discovering the Instagram page, Okonowsky had invited some custody staff to her home for a work celebration. However, she found a post on the page “joking” that all the male custody staff employees would “gang bang” Okonowsky at her party, and this post was “liked” by Lompoc staff members. This post understandably upset Okonowsky to the point that she cancelled the gathering. Id. at *7-*9.
Okonowsky reported the page to her supervisor, Chief Psychologist Clark Clegg. She also expressed concern to the Acting Safety Manager, Robert Grice, that he was following the page and liking the posts. Grice told her that she needed to “toughen up or get a sense of humor.” Id. at *9. Nevertheless, Clegg met with Okonowsky, and she agreed to transfer from the medium security facility where she worked to a low security facility at Lompoc. Additionally, the Acting Warden for Lompoc advised Okonowsky that he had ordered an investigation into the Instagram page. Id. at *9-*10. However, no evidence was ever presented that Lompoc completed this investigation. Id. at *20.
Following her initial complaint, the posts continued, appearing to specifically target Okonowsky because of her complaint. When Okonowsky made the HR Manager aware of the situation, he told her that he thought that the posts were “funny” and confirmed what Okonowsky suspected, that Hellman was behind the Instagram page and posts. Id. at *12-*13. As Okonowsky continued to complain, Hellman was eventually assigned to a different facility at Lompoc on March 11, 2020. Id. at *15. Nonetheless, Hellman continued to post. Id. at *15-*17.
A new warden eventually convened a Threat Assessment Team (Team) who investigated and issued a report and recommendation on April 16, 2020. While concluding that Hellman’s posts amounted to impermissible “harassing conduct” thereby violating Lompoc’s standards of conduct, the Team also advised Okonowsky that it could not police Hellman’s page. Thus, she should simply not look at it anymore. Id. at *17-*18. On April 16, 2020, Lompoc issued Hellman a letter ordering him to stop posting objectionable material or he could be terminated. But Hellman continued to post, and Okonowsky continued to complain to Lompoc management. Her complaints went unanswered. Therefore, in January 2021, Okonowsky transferred to a BOP facility in Texas, and on September 22, 2021, she filed suit claiming that she was subjected to a hostile work environment based on sex. Id. at *19-*20.
District Court Dismisses the Case, but Okonowsky Appeals
The BOP moved to dismiss Okonowsky’s case, and the United States district court granted the BOP’s motion. Id. at *21-*22. In doing so, the district court focused on a limited number of posts from Hellman’s Instagram account and determined that because the posts were made on a staff member’s personal page, were made entirely outside the workplace, were never shown to Okonowsky in the workplace, were never displayed in the workplace, and were never discussed in the workplace without Okonowsky’s consent, then Okonowsky could not proceed with her hostile work environment claim. Id. at *21-*22. Okonowsky appealed to the United States Court of Appeals for the Ninth Circuit. Id. at *23.
The Totality of the Circumstances Test
Is Conduct Occur Outside of the Workplace to be Legally Actionable?
The factors a court must consider regarding a claim of a sexually hostile work environment are:
1) whether [an employee] was subjected to verbal or physical conduct of a sexual nature; 2) whether the conduct was unwelcome; and 3) whether the conduct was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment [i.e., was the work environment objectively hostile?].”
Id. at *24 (citing Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 647 (9th Cir. 2021)).
The BOP did not dispute that Okonowsky experienced unwanted and unwelcomed conduct based on her sex which she believed made her work environment hostile. However, the BOP did dispute factor three above and argued that the district court was correct in determining that social media posts made entirely outside of the workplace on a personal employee account could not create a hostile work environment. Id.
In addressing whether conduct outside of the workplace can form the basis of a hostile work environment claim, the appellate court noted that the correct test for determining objective hostility is to look at the totality of the circumstances in each case. Id.
The Ubiquity of Social Media
In looking at Hellman’s Instagram account and the posts to which Okonowsky was exposed, the Ninth Circuit noted that:
[I]t makes little sense to describe a social media page that includes overt comments about a specific workplace . . . as “occurring” in only a discrete location. . . . Social 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. No matter where Hellman was or what he was doing when he made his posts, Lompoc employees who followed the page were free to, and did, view, “like,” comment, share, screenshot, print, and otherwise engage with or perceive his abusive posts from anywhere. The Instagram page also served as a record of which co-workers subscribed to the page and commented on posts, showed their comments and their “likes,” and could be seen at any time from any place—including from the workplace.
Id. at *26-*27.
Therefore, the Ninth Circuit held that “conduct that [takes] place outside of the physical work environment is part of the totality of the circumstances [which courts] evaluate when considering a hostile work environment claim.” Id. at *27.
Employer Takeaways
This case makes it clear that employers should not turn a blind eye to employee complaints about co-workers’ personal social media posts outside of work. Sexually explicit or other inappropriate material, behavior, or speech on social media that denigrates people based on a protected class (sex, race, etc.) can absolutely create a legally actionable hostile work environment regardless of whether it was posted on a personal account or on work time. If these posts bleed into the workplace, they can create liability for an employer. Therefore, employers must have comprehensive social media policies that clearly advise employees of what behavior is and is not appropriate. Moreover, when appropriate, HR employees should consider including social media accounts when investigating hostile work environment claims. Lastly, management employees need to be very careful about connecting with subordinates via personal social media accounts.
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Rainey Kizer Reviere & Bell PLC
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