Social Media and Hostile Work Environment Claims

The Ninth Circuit Court of Appeals recently continued a trend of courts finding that employee posts on their personal social media accounts contributed to hostile work environments. Lindsay Okonowsky, a staff psychologist in a federal prison, sued the Department of Justice for sexual harassment due to a hostile work environment. Her claim arose after she discovered an Instagram account operated by a corrections officer with more than one hundred followers who were also employees. The officer posted sexually offensive content related to work and included posts about the plaintiff. After discovering the account, she complained to a manager who told her it was “funny.” The coworker began posting about the plaintiff more until she resigned.

The plaintiff sued the Bureau of Prisons under Title VII of the Civil Rights Act of 1964, claiming the Bureau failed to take adequate measures to address a hostile work environment at the prison. The district court granted the government’s motion for summary judgment, and the plaintiff appealed.

In reversing the district court’s ruling, the Ninth Circuit held the lower court erred by considering only some of the evidence and excluding the social media posts. The Court rejected the employer’s argument that only conduct occurring inside the physical workspace may contribute to a hostile work environment. Instead, it reaffirmed that courts must consider the “totality of the circumstances” in harassment cases. Those circumstances may involve conduct occurring outside work, including the internet, if it is related to work. So long as the conduct had an “unreasonable effect” on the workplace, then it is relevant.

This decision is in line with those of other courts across the country. In Strickland v. City of Detroit, 995 F.3d 495, 506-07, the Sixth Circuit Court of Appeals considered social media posts by police department personnel referring to Detroit residents as “garbage” and characterizing Black Lives Matter supporters as “racist terrorists” in assessing whether the plaintiff’s work environment was racially hostile. Similarly in Fisher v. Mermaid Manor Home for Adults, LLC, 192 F. Supp. 3d 323, 326, the district court found that a coworker’s Instagram post comparing the plaintiff to a chimpanzee character in the Planet of the Apes movie contributed to a hostile work environment. Following cases such as these, the Equal Employment Opportunity Commission has published guidance for employers on this issue.

Although employers need not strictly regulate employees’ personal social media, they must take seriously complaints about employees’ online actions. If an employee’s social media use is harassing and related to work, then it could create liability. If you have concerns about employee social media use, please contact the attorneys at Allen, Glaessner, Hazelwood and Werth, LLP.

A copy of the case can be found here.

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