The recent ruling by the U.S. Court of Appeals for the Ninth Circuit in Okonowsky v. Merrick Garland highlights the growing responsibility of employers to address harassment that occurs on social media. The court’s decision on July 25, 2024, made it clear that employers can be held liable under Title VII of the Civil Rights Act for hostile work environments created by employees’ online actions, even if those actions take place outside the physical workplace.
For additional information regarding workplace harassment, and to find out how this could impact your business, please contact our Managing Partner, Richard Liu, at richard.liu@consultils.com.
Case Overview
Lindsay Okonowsky, a psychologist at a federal correctional facility in Lompoc, California, faced harassment from a colleague, Steven Hellman, who used his personal social media account to post derogatory content targeting her and other women. Despite her repeated complaints, the Bureau of Prisons failed to take sufficient action, leading Okonowsky to transfer to another facility and eventually file a lawsuit under Title VII.
Initially, the district court ruled in favor of the Bureau, arguing that the social media posts occurred outside the workplace and therefore did not constitute workplace harassment. However, the Ninth Circuit overturned this decision, emphasizing that offsite social media activity can significantly affect an employee's work environment and is relevant to workplace harassment claims.
Key Points from the Ninth Circuit's Ruling
Expanding the Scope of Workplace Harassment: The Ninth Circuit underscored that the traditional boundaries of the workplace are no longer sufficient to determine whether harassment occurred. Social media posts are accessible at all times and can impact an employee's workplace experience, regardless of where the posts originated.
Impact on Work Environment: The court emphasized that the key issue is not where the harassment occurred but whether it had an unreasonable effect on the employee's work environment. In this case, Hellman's posts were graphic and threatening, significantly impacting Okonowsky's ability to perform her job.
Legal Implications for Employers: The ruling stresses that employers cannot ignore complaints about harassment originating from personal social media accounts if the behavior affects the workplace. Employers must take these complaints seriously and act promptly to address them.
Practical Steps for Employers
The Okonowsky decision is a timely reminder for employers to review and update their workplace policies. Consider the following steps:
Update Anti-Harassment and Social Media Policies: Ensure your policies explicitly address harassment through personal social media accounts. Clearly state that any content shared with co-workers that violates anti-discrimination or anti-harassment policies is prohibited, even if posted on personal accounts.
Establish Clear Investigation Protocols: Employers need clear protocols for investigating hostile work environment claims, including those related to social media. These protocols should cover all forms of discrimination and harassment based on protected classifications.
Train Supervisors and Managers: It's crucial to train supervisors and managers to recognize and address social media posts that violate company policies. They should also be equipped to handle complaints related to personal social media activity.
Respect Legal Boundaries: Employers must be mindful of state laws that limit their ability to monitor or access employees' personal social media accounts. Policies should respect employees' rights under the National Labor Relations Act (NLRA) and other relevant laws. If an employee refuses to provide access to their personal social media during an investigation, the investigation should proceed based on other available evidence.
Conclusion
The Okonowsky v. Merrick Garland ruling underscores the importance of addressing harassment in all its forms, including social media. Employers should proactively update policies, provide thorough training, and ensure compliance with legal standards to protect both their employees and their organization. As the lines between work and personal life continue to blur in today’s digital world, employers must be prepared to navigate this evolving landscape.
For additional information regarding workplace harassment, and to find out how this could impact your business, please contact our Managing Partner, Richard Liu, at richard.liu@consultils.com.
Richard Liu, Esq. is the Managing Counsel of ILS. He serves clients as a management-side defense lawyer specializing in employment and business litigation. Richard is also an expert on litigation prevention and compliance. He regularly advises Fortune 500 companies and startups on employment, labor, and commercial matters.
Email: richard.liu@consultils.com | Phone: 626-344-8949
*Disclaimer: This article does not constitute legal opinion and does not create any attorney-client relationship.
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