I started practicing law before the Supreme Court even recognized the validity of hostile work environment harassment (HWE) claims in its groundbreaking case Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Developments in this area of employment law over nearly 40 years most recently led to the Court’s decision in Bostock v. Clayton Co., 590 U.S. 644 (2020), protecting invdividuals from discrimination because of their sexuality or gender identity.
Each time I taught Employment Discrimination law as an adjunct at the University of Baltimore Law School, the analysis of HWE harassment claims (remember – it applies to all protected categories of course, but sex harassment gets the primary focus) elicited great discussion.
One regular topic was whether it matters if the harassing activity occurs “at work” or “away from work.” What may at first seem an easy distinction quickly gets muddled. If I make inappropriate and unwelcome comments to a co-worker while we’re at work, that’s clearly a recipe for a HWE claim. But what if I see that co-worker at the grocery and make those same comments?
Put aside for the moment the usual lawyer answer (“it depends”). I’ve always thought the analysis was clear: if the “away from work” conduct interferes with workplace relationships then, yes, that creates potential liability. Put otherwise, if what happens after work at a bar on Friday comes back to the office on Monday, that’s a problem. The EEOC has long felt, and still feels, this way. This past April, the Commission released revised harassment Guidance that supports the position.
A recent decision from the Ninth Circuit confirmed this approach. Overturning the district court’s award of summary judgment for the employer in Okonowsky v. Garland, __ F.4th __, 2024 U.S. App. LEXIS 18357 (9th Cir. July 25, 2024), the court held that the plaintiff established sufficient facts regarding a co-worker’s harassing behavior away from the workplace to permit the case to go to trial.
A warning here: some of what follows is not appropriate for youngsters (just in case any of them read this blog).
The case involved the Federal prison in Lompoc, California. Linda Okonowsky was a staff psychologist at Lompoc. Among other things, she dealt with potentially suicidal inmates in the Special Housing Unit (SHU). Okonowsky worked with Lieutenant Steven Hellman, who was responsible for the safety SHU of guards and staff. He was not her supervisor, but he was a supervisor and they worked side by side.
Okonowsky and Hellman disagreed (quoting the court here) “over how to manage ‘difficult inmates’ in the SHU.” He became frustrated when Okonowsky got an office in the SHU and claimed that her “use of the office made it ‘impossible’ for him and other corrections officers ‘to do their job’ . . . .”
Hellman is also a big fan of using social media. And while this disagreement with Okonowsky was ongoing, he created an Instagram page that was… well, let’s call it “raw.” The court related that the account contained “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. The page was followed by more than one hundred Lompoc employees, including the Human Resources Manager, the Union President, and a member of the prison’s Special Investigative Services.” Nice, right? (Note the sarcasm).
I will spare you many details (as did the court, noting that “most of the posts are too graphic and disturbing to republish here . . .”). One example was enough: “Prior to discovering the Instagram page, Okonowsky had invited members of the SHU custody staff to an end-of-the-quarter celebration at her home. When Okonowsky found Hellman’s Instagram page, she discovered that he had made a post joking that the all-male custody officers would ‘gang bang’ Okonowsky at her home during the party. . . . [T]he post was openly ‘liked’ and thereby endorsed by staff members. . . .” Okonowsky cancelled the gathering as a result. Yeah, right. Still with me here?
Okonowsky complained to her supervisors and to the Warden. Basically, they said “can’t you take a joke?” and “Get over it.” Or they didn’t reply at all. Hellman continued to post very, very nasty things about Okonowsky, even after an internal “investigation” was allegedly being conducted. Okonowsky sued.
The district court looked only at five Instagram posts that directly referenced Okonowsky. It concluded there was no objectively hostile environment because those posts: (1) “occurred entirely outside of the workplace;” (2) were made on Hellman’s personal Instagram page; and (3) none were sent directly to Okonowsky, displayed in the workplace, shown to Okonowsky in the workplace, or discussed with Okonowsky in the workplace without her consent.
The Ninth Circuit would have none of this. Recognizing the outsized role social media plays (like it or not) today, the court stressed that “it 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 . . . 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.” (emphasis mine).
Moreover, said the court, even if the conduct occurred “off-site” the relevant question is whether it affected Okonowsky’s work environment. Here, there was enough evidence to let a jury decide whether the conduct was severe or pervasive enough to warrant a decision in Okonowsky’s favor.
The take-away here? Employers have an obligation to create a workplace free from discrimination and harassment. That includes addressing off-site behavior that affects an employee’s environment at work. Social media has made this exponentially harder for employers, but that doesn’t give them a pass to ignore it. To do so comes with significant risk.