The United States Court of Appeals for the Ninth Circuit recently reviewed a case in which an off-duty employee’s social media use may constitute workplace harassment under Title VII of the Civil Rights Act of 1964.
While this decision only impacts the Ninth Circuit, its adherence to the Equal Employment Opportunity Commission’s Enforcement Guidance on Harassment in the Workplace regarding “offsite” workplace harassment is of concern for all jurisdictions.
In her latest blog, KingSpry’s Employment Law Chair, Avery E. Smith, Esq., reviews the Ninth Circuit’s opinion in Okonowsky v. Garland, 109 F.4th 1166 (9th Cir. 2024) and details what it means for employers’ responsibility to address employee conduct.
Facts of the Case
Lindsay Okonowsky was a staff psychologist at the Bureau of Prison’s Federal Correctional Complex in Lompoc, California. She discovered that Steven Hellman (“Hellman”), a corrections Lieutenant at the prison, operated an Instagram account, which was followed by more than one hundred (100) other prison employees. Okonowsky learned that Hellman posted sexually offensive content about work on his Instagram account, and that she was a personal target of such content.
Okonowsky’s initial complaints about the Instagram account were not addressed by the prison. Once Hellman became aware of Okonowsky’s complaints, he continued to post content intended to target and intimidate Okonowsky. Two months after her initial complaint, the prison issued Hellman a cease-and-desist letter stating that his posts on social media appeared to have violated the prison’s Anti-Harassment Policy. Hellman continued to post sexually hostile content.
Months later, due to the harassment, Okonowsky was transferred to a Bureau of Prison’s facility in Texas.
The Lawsuit
Okonowsky sued the Bureau of Prisons under Title VII of the Civil Rights Act of 1964, claiming that the Bureau failed to take adequate measures to address a hostile work environment at the prison. The United States District Court for the Central District of California found in favor of the Bureau of Prisons, reasoning that the prison was not responsible for Hellman’s conduct, because the posts occurred “entirely outside of the workplace.”
Okonowsky appealed that decision to the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit Court”).
Standard of Review
The Ninth Circuit Court stated that for a Title VII hostile work environment claim, it must consider a “non-exhaustive list of the circumstances and characteristics of alleged harassment which does not distinguish between conduct occurring on or off the physical or digital worksite.” Applying this standard, courts have found that offsite conduct can have the effect of alternating the working environment.
In this case, the important question was not whether Hellman’s posts were made from the workplace, but rather, whether his conduct had an unreasonable effect on Okonowsky’s working environment.
The Ninth Circuit’s Ruling
The Ninth Circuit Court reversed the District Court’s holding and remanded the case for proceedings consistent with its opinion. The Court concluded that “a reasonable juror could conclude that the prison failed to take prompt and effective remedial action to address Okonowsky’s hostile work environment.”
EEOC Enforcement Guidance
The Ninth Circuit Court’s opinion adheres to the Equal Employment Opportunity Commission (“EEOC”)’s recent Enforcement Guidance on Harassment in the Workplace, which provides that “a hostile work environment claim may include conduct that occurs in a work-related context outside an employee’s regular workplace.”
Key Takeaways for Employers
Based upon the EEOC’s Enforcement Guidance on Harassment in the Workplace and the Ninth Circuit Court’s ruling in Okonowsky v. Garland, 109 F.4th 1166 (9th Cir. 2024), workplace versus nonworkplace boundaries are blurred. This case signals that employers may be responsible for their employees’ actions, even when they are off the clock and/or not on workplace premises.
Employers should review their policies and procedures regarding workplace harassment to ensure that they provide thorough investigations for complaints of workplace harassment. Further, employers should review and/or develop policies addressing their procedures for responding to their employees’ content online, should it contribute to a hostile work environment.
