Social media posts made by a coworker off-hours and off-site may still support a Title VII claim against an employer, the Ninth U.S. Circuit Court has ruled.
Lindsay Okonowsky was a staff psychologist at the Bureau of Prison’s Federal Correctional Complex Lompoc.
She discovered that Steven Hellman, a Corrections Lieutenant who also worked in the Special Housing Unit (SHU)—who was responsible for overseeing the safety of guards, prison staff and inmates in the unit—operated an Instagram account which was followed by more than 100 prison employees.
Many of the posts suggested violence against or sexual contact with women coworkers, or violence against women generally. The posts were graphic, suggestive of rape and physical harassment, and depicted scenes of violence against women in general, and against “the SHU psychologist” in particular.
Posts ridiculed the psychologist in a coarse and degrading manner simply for doing her job. One that particularly disturbed Okonowsky occurred after she had invited coworkers to a party at her home, with a post that the all-male custody officers would “gang bang” her at her home during the party.
Okonowsky forwarded images from the page to her supervisor and messaged the prison’s safety manager, expressing concern that he followed the page and liked the posts. The safety manager told Okonowsky that the posts were “funny” and that he was “sorry, not sorry.”
She also reported the page to the warden, who never responded to her. A special investigative agent who was directed to investigate Okonowsky’s complaint told her he didn’t “really see anything that’s a problem” with the page, even though posts were subsequently made about her making it clear the author knew she had complained.
Okonowsky felt less and less safe at work as disturbing content continued to be posted. She raised the issue with the human resources manager, but he was also a follower of the page and told her he thought it was funny.
A new warden convened a Threat Assessment Team, which concluded that Hellman’s conduct violated the prison’s standards of conduct. The prison sent a cease-and-desist letter to Hellman, but he continued posting for at least three more weeks.
Okonowsky continued to report the posts but received no response. She transferred to another prison in Texas and filed suit under Title VII, alleging discrimination on the basis of sex.
The district court granted the government’s motion for summary judgment, determining that the posts occurred outside of the workplace on a personal Instagram page; in the alternative, the court also found that the prison took reasonable, prompt and corrective steps to end the harassment.
Okonowsky appealed and the Ninth Circuit reversed.
The district court failed to consider the totality of the circumstances, the panel said, and the argument that the posts occurred “entirely outside of the workplace” was grounded on legally and factually erroneous assumptions.
“[I]t makes little sense to describe a social media page that includes overt comments about a specific workplace, like Hellman’s, as ‘occurring’ in only a discrete location,” the court wrote. “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.”
Further, the Ninth Circuit has held that conduct taking place outside of the physical work environment is part of the totality of the circumstances evaluated when considering a hostile work environment, and that offsite and third-party conduct can have the effect of altering the working environment in an objectively severe or pervasive manner.
“Here, Okonowsky has adduced ample evidence that Hellman’s sexually discriminatory conduct ‘ma[de] it more difficult for her to do her job, to take pride in her work, and to desire to stay in her position,’” the court said. “The prison itself concluded as much when its Threat Assessment Team and leadership determined that Hellman’s supposedly ‘offsite’ behavior violated the Bureau’s Anti-Harassment Policy.”
Okonowsky raised triable issues of fact as to the existence of a hostile work environment, the court said, requiring reversal of the summary judgment order.
A reasonable fact finder could conclude that numerous of Hellman’s posts about Okonowsky were intended to, and had the effect of, harassing her on the basis of her sex, humiliating and degrading her, and intimidating her in an effort to shape her behavior in the workplace and discourage future complaints about Hellman’s conduct.
“Okonowsky’s evidence does not start and end with Hellman’s conduct,” the court added. “Both management and Okonowsky’s co-workers contributed to the altered workplace. Many employees at Lompoc ‘liked’ Hellman’s posts and commented favorably upon them. Okonowsky witnessed coworkers discussing and laughing about Hellman’s posts at work. And managers and staff members in charge of enforcing workplace policy and investigating Okonowsky’s complaint acquiesced to and at times even endorsed Hellman’s conduct.”
A reasonable juror could also conclude that the Bureau’s response to Okonowsky’s harassment was not reasonable, immediate or effective, triggering liability under Title VII.
The Bureau’s response to Hellman’s harassing conduct and the prison management’s endorsement of it was “equivocal at best,” the panel said. The investigation was “slow-walked”—the warden never responded to any of Okonowsky’s correspondence and the prison’s safety manager and human resources manager both told her they found the page to be “funny” and continued to subscribe after she made her complaint, even as Hellman posted harassing content that increasingly targeted Okonowsky.
Even the cease-and-desist letter was too little, too late, the court said, as it didn’t actually stop Hellman from posting and his harassing conduct continued for weeks.
“We take this occasion to reaffirm that the totality of the circumstances in a Title VII sexually hostile work environment claim includes evidence of sexually harassing conduct, even if it does not expressly target the plaintiff, as well as evidence of non-sexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating,” the court wrote. “We also reject 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.”
To read the opinion in Okonowsky v. Garland, click here.
Why it matters
Employers should pay close attention to the Ninth Circuit decision, which made it clear that discriminatory or harassing conduct occurring outside the physical workplace—particularly on social media—can be the basis for employer liability.