A recent ruling by the Ninth Circuit Court of Appeals (which has jurisdiction over Arizona) highlights the need for employers to be vigilant about workplace harassment via social media posts.
The case (Okonowsky v. Garland) involved a female employee who learned of an anonymous Instagram page that contained, among other things, hundreds of offensive sexist, racist, anti-Semitic, homophobic, and transphobic posts referring to her workplace, including some posts that appeared to refer indirectly to her. She reported the page to her supervisor and other management personnel (some of whom said they would investigate, others of whom told her to “toughen up” or “get a sense of humor”). The posts actually got worse after she reported her concerns; posts containing crude, graphic, and violent content specifically referring to her began appearing on the page. She also was the subject of a number of posts that appeared to target and intimidate her for reporting the site. After several weeks, the employer identified a male supervisor as the creator of the page. The employer told him that his posts violated the employer’s policy against workplace harassment, and ordered him to stop. He posted additional offensive content on the page almost every day for the next three weeks, after which he finally stopped and took the page down.
The employee sued, alleging workplace sexual harassment in violation of the Civil Rights Act. The trial court dismissed her case, observing that the posts technically “occurred outside of the workplace,” and noting that none of the posts were actually sent directly to her. Under those circumstances, the court concluded, the posts did not constitute “workplace harassment.”
The Ninth Circuit reversed that decision. The Court of Appeals noted that regardless of where the creator of the page was when he posted his offensive content, people in the workplace could (and did) see his posts, and his posts had the effect of creating a hostile working environment for the claimant. The Court summarized, “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.” Because “a reasonable juror could find the work environment objectively hostile,” the employee was entitled to a trial on her claim.
The Okonowsky case does not mean that employers are automatically liable for offensive social media posts. But the case highlights the importance of responding in a timely and appropriate manner to any employee complaints about such posts. Employers, that is, cannot ignore such complaints on the notion that social media posts are occurring “outside of the workplace,” and that they have no authority or responsibility to address such “off campus” conduct. The Okonowsky case makes clear that employers do have the responsibility to take “timely and appropriate corrective action” when such posts reverberate inside the workplace and have the effect of creating a hostile working environment. As the Court put it, employers have a responsibility “especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.”
The Okonowsky case also highlights the need for effective reporting and investigation procedures. Employers must disseminate and maintain written policies giving personnel clear guidance about where they can complain about alleged discrimination or harassment. Employers also must conscientiously assess all such complaints, and must respond to all such concerns in a timely and appropriate manner. Employers also must take special care not to retaliate against any employee who reports or participates in an investigation into allegations of workplace harassment or discrimination.
We encourage employers who have specific questions about potential workplace harassment issues or any employment law topic to contact the author or any member of Gallagher & Kennedy’s Employment & Labor Law practice.
about the author
Don Johnsen represents employers in matters involving employment discrimination and sexual harassment, wrongful discharge, breach of contract, wage and hour disputes, arbitrations, and labor practice charges. Practicing employment and labor law exclusively, he advises on employee hiring, discipline and discharge procedures, drug and alcohol testing, non-competition matters, labor relations issues, and other employment-related policies and procedures.