Mike Bourgon

Okonowsky v. Garland involved particularly bad facts and a clear failure to take sufficient remedial efforts. Therefore, employers should take note of the errors in this case to prevent similar issues in the future.

Social media is again making legal headlines with a new decision out of the influential 9th Circuit, Okonowsky v. Garland, which held a corrections lieutenant’s posts on social media about another employee, all occurring outside the workplace, could constitute unlawful harassment under Title VII. Given the frightening implications for employers – who now have to worry about what their employees are doing off duty – we did a deep dive into Okonowsky, to understand why this result was reached and what employers need to learn from this new decision.

The EEOC’s updated Enforcement Guidance on Harassment in the Workplace, while not the law, represents the EEOC’s interpretation of federal law and provides important, risk-minimizing insight for employers who have received complaints of harassment. Indeed, instituting a prompt and thorough investigation upon receipt of a complaint is usually the first step to help avoid costly litigation, preserve a positive workplace culture and ensure a safe work environment for employees going forward.