By Ty Hyderally, Esq and Kenny Delgado

September 23, 2024

The workplace is no longer simply a physical location. With the advent of social media, remote work and the interconnectivity of everyday life, there has been an expansion of the workplace beyond the brick and mortar workplace. Where are those lines drawn and where does the outside world seep into the protected environment of employment? The question of the role of social media and extension of the employer’s duty to protect its employees comes into focus with a recent case. In the case of Okonowsky v. Garland, the Court of Appeals of the Ninth Circuit set forth into motion an extension of protections under Title VII of the Civil Rights Act. The Court’s decision to reverse and remand a summary judgment decision, puts a focus on the future of workplace discrimination and the extension of a hostile work environment to include actions by employees that take place on social media sites.

The case between a prison psychologist, Lindsay Okonowsky, and her employer, the Federal Bureau of Prisons, centers around the actions and Instagram posts of a custody officer, Lieutenant Steven Hellman, in charge of keeping staff and inmates safe. Within the workplace, the psychologist and the lieutenant had disagreements regarding the handling of inmates.  All of this is simply a part of the job and would not have been an issue if that was the extent of the situation.  However, the issues of this case became salient when Ms. Okonowsky found an Instagram account, followed by many of her co-workers. The account posted sexually aggressive and suggestive content that indirectly referenced the psychologist and other work incidents. Due to the nature of the posts, Ms. Okonowsky reported the behavior. However, the behavior continued beyond the plaintiff’s complaints and action was not taken to put a stop to the account. Reports to the proper channel did not turn into action from human resources or management. The posts eventually led to the Plaintiff transferring to a different unit and eventually leaving the facility all together. The question that the Ninth Circuit grappled with was the ramifications of actions that take place beyond the physical workplace creating a hostile environment.  Additionally, the Court discussed the issue of whether a claim is actionable against the employer, if the employer does not attempt to end the behavior.

On appeal, the Ninth Circuit reversed the trial court granting summary judgment in favor of the Defendant, federal government. The Appeals Court stated that the trial judge erred in deciding that only conduct that occurs within a physical workplace can be actionable in creating a hostile work environment. In particular, the Appeal Court focused on the role of social media, its pervasive nature and the impact that its omnipresence can have in creating an unsafe space at work. Further the decision extended the onus of an employer in remedying the situation to include actions that reestablish the safety of the victim.

The ruling of the Ninth Circuit court is not an excuse to invite employers into intruding into the private life of employees.  However, it is an decision that takes cognizance of the import of a company having an obligation to handle a situation that Title VII was created to resolve. The postings were not just the opinions of a solitary actor expressing political or personal views.  Rather the posts were intended to demean a coworker based on incidents that occurred within the workplace. In this case, a hostile work  environment was created by the actions of the Lieutenant as well as through the inaction of the employer.

The Court made it clear that it was up to a jury to determine if the action of the employer was sufficient to cause an end to the hostile environment. In this case, the Court noted that assigning a party to investigate the matter and then create a taskforce to investigate the Instagram account was not sufficient. The Court states that a jury could reasonably believe that the inaction of the employer was encouraging the action and was insufficient in curbing the behavior. Prior rulings have made it clear that an employer must be actively involved in ending the actions that create the environment complained about by the victim.

The fact that the expansion of the workplace now includes the larger environment created by social media opens the protections of Title VII beyond the four corners of the brick and mortar workplace. The decision ends the supposition that employers do not have a duty to prevent a hostile work environment from actions occurring outside of the immediate workplace. Protecting employees from abusive behavior on social media is now very much a reality for employers.

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