Part 1 of 2
Social media has truly changed our world, both in and outside of the workplace. It has evolved into a daily habit for many of us; the way we get news about the world and our friends, the way we shop, gossip, and much more. It is also, for many employees, a big part of their lives.
It should be no surprise that social media has become a major factor in numerous employment disputes.
What are employees sharing? Are their posts causing offense? Are they defaming the company or engaging in online discrimination or harassment?
The main challenge with these issues is how an employer can manage conduct that frequently occurs off-site and outside of work hours.
Should employers attempt to regulate such behavior? Can they control what employees say without breaching legal boundaries? What if a post qualifies as protected concerted activity under the National Labor Relations Act, or is considered protected activity or political speech?
These are complex questions with no straightforward answers.
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
Okonowsky v. Garland
The core issue in Okonowsky centered on a series of inappropriate and insulting Instagram posts by a corrections lieutenant (Stephen Hellman) at a federal prison, several of which were directed at a subordinate employee in a different division of the prison (Lindsay Okonowsky).
Hellman maintained a personal Instagram account that had many followers who were also employees at the prison, including members of the human resources department and supervisors tasked with investigating harassment claims.
Among several troublesome posts, Hellman made comments about sexual and physical violence directed at Okonowsky, including “a crude joke depicting a cowboy figure holding two guns pointing in opposite directions, with text suggesting he would shoot both the SHU psychologist [i.e., Okonowsky] and a particular inmate” and a post suggesting that male custody officers “gang bang” Okonowsky at her home.
Even after Okonowsky complained about Hellman’s Instagram activity, he continued to mock Okonowsky on social media for lodging complaints about the online harassment.
The district court initially granted summary judgment in favor of the prison, highlighting that the social media conduct “occurred outside of the workplace.” Relevant to the district court’s decision, Hellman’s social media posts were from a personal account, never sent directly to Okonowsky, and never displayed in the workplace.
How Did the Social Media Posts Create an Objectively Hostile Work Environment?
- The Court considered Hellman’s status as a lieutenant at the prison, someone in a leadership role. While Hellman was not a direct supervisor of Okonowsky, he was responsible for the safety of inmates and staff, including Okonowsky, and oversaw the corrections officers who worked in Okonowsky’s unit.
- The Court considered the permeating nature of social media, which creates such a wide viewing audience for online posts, even those occurring outside the workplace. The Court noted “posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the post appears. No matter where Hellman was or what he was doing when he made his posts, [prison] 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.”
- The Court also considered that the Instagram posts were directed at, and all but named, Okonowsky.
- Finally, the Court considered the fact that nearly half of Hellman’s followers were fellow employees. The clear access by supervisors, managers and co-workers to such inappropriate and demeaning social media conduct even led the prison to eventually find Hellman’s conduct violated the prison’s anti-harassment policy.
Given all of these factors, including such a clear record of hostile and abusive conduct, the Court concluded that the social posts and online interaction clearly could impact Okonowsky’s working conditions, even if such conduct occurred outside of work.
The “ubiquity” of social media and the overwhelming factual support led to the conclusion that conduct occurring both inside and outside the workplace, including on someone’s personal social media, could be actionable as creating a hostile work environment under Title VII.
Next Week:What Should Employers Do Now?
The team at Synergy HR is available to conduct workplace harassment investigations, provide legal advice related to harassment cases, and provide anti-harassment training for employees and supervisors. This training can be conducted either in person or virtually.
Contact us today to discuss your concerns regarding unlawful harassment liabilities at your organization.
Is your Employee Handbook
2025 Compliant?
Like it or not, recent federal and state law changes, regulatory changes and precedent-setting federal case law have necessitated the updating of your policies, procedures and forms.
And these required updates apply to employers of all sizes.
These revisions should have been in place by January 1, 2025.
Synergy Human Resources is available to help ensure that your policies, procedures and forms are updated and compliant for the new year.
