Social Media Activity Outside of Work Can Constitute Discrimination and Harassment

The Ninth Circuit recognized that conduct that occurred outside the workplace, like social media activity, can be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. In other words, offensive social media posts about an employee made outside of the workplace can constitute as harassment and trigger sex Discrimination Lawyers liability for employers.

In Okonowsky v. Garland, the Ninth Circuit overturned the Central District of California’s summary judgment in favor of the government regarding a sex discrimination claim based on social media posts made outside the workplace. The District Court had ruled that the posts, which occurred over several months, were insufficiently severe or pervasive to create a hostile work environment, particularly because they were made outside of work.

To evaluate whether Okonowsky experienced a sexually hostile work environment, the court assessed three factors:

(1) whether she was subjected to verbal or physical conduct of a sexual nature;
(2) whether the conduct was unwelcome; and
(3) whether it was sufficiently severe or pervasive to alter employment conditions and create an abusive environment.

The District Court concluded that the conduct was not sufficiently severe or pervasive as it occurred outside the workplace. Moreover, Okonowsky failed to demonstrate that her work environment was objectively hostile.

The Ninth Circuit reconsidered whether Okonowsky provided enough evidence to establish an objectively hostile work environment. This court held that when offensive conduct occurs outside the workplace or involves non-employees, the key issue is the employer’s response to the reported Workplace harassment.

In this case, Okonowsky’s coworker, Hellman, posted graphic and disturbing content on his social media page, suggesting violence against Okonowsky or women in general. Other coworkers and managers engaged with Hellman’s posts by liking and commenting favorably. Okonowsky reported the behavior to Human Resources, the Union President, and the prison’s Safety Manager. Despite her complaints, much of management and HR dismissed her concerns, even finding the content “funny.”

You can also read: What Are the Most Common Examples of a Hostile Work Environment?

The District Court held that Okonowsky’s employer took sufficient action to stop the hostile conduct by opening an investigation and issuing a cease-and-desist letter to Hellman. However, this court noted that there were several delays from the employer and supervisors were mocking Okonowsky and the situation. Also, the offensive posts continued for two months after Okonowsky reported them to HR and supervisors. Ultimately, the Ninth Circuit held that Okonowsky raised a material issue as to whether she experienced a hostile work environment and whether her employer failed to take prompt and effective remedial action.