A recent Ninth Circuit Court of Appeals decision underscored the fact that activity away from the workplace could nonetheless create a hostile work environment for purposes of unlawful harassment/discrimination claims. In Okonowsky v. Garland, the plaintiff, an employee at the Lompoc correctional facility, had work‑related disagreements and conflicts with a co-worker. Thereafter, the co-worker created a social media account that contained multiple offensive and graphic posts suggesting and depicting rape and physical violence against the plaintiff and women in general. This social media account was followed by many fellow Lompoc employees. The plaintiff complained about the posts to the employer, but she felt that sufficient action was not taken and so she transferred to another location and filed suit for sex discrimination. The District Court dismissed the case because the posts occurred entirely outside of the workplace on the co-worker’s personal social media account, and no messages were sent directly to the plaintiff or displayed/discussed in the workplace without her consent.
On appeal, the Ninth Circuit disagreed with the lower court, stating that “[s]ocial media posts are permanently and infinitely viewable and reviewable by any person with access to the page or site on which the posts appear,” and that the posts “also served as a record of which co-workers subscribed to the page and commented on posts, showed their comments and their ‘likes,’ and could be seen at any time from any place — including from the workplace.” The Ninth Circuit also stated that the key inquiry was not whether the post occurred at work or the co-workers interacted with the page while at work, but rather whether “the discriminatory conduct had an unreasonable effect on [the plaintiff’s] work environment.” Under this analysis, the Ninth Circuit concluded that such offsite conduct could alter the working environment in a severe or pervasive manner.
This decision is a reminder that there are no defined boundaries for the locus of conduct that could create a hostile workplace environment. This decision also supports the basis for employers to extend their social media policies to harassing, offensive and threatening content that could alter the working environment. Lastly, in investigating and addressing potential workplace harassment and discrimination, employers should not refuse to consider relevant conduct just because it occurred away from the work premises. Employment counsel should be consulted regarding any modifications to policies or harassment investigations.
