The Ninth Circuit Reminds Employers of Obligations When Addressing Social Media Posts Affecting Workplace

A recent Ninth Circuit decision clarifies employers’ obligations to address hostile work environment complaints arising out of employees' off-premises social media activity. In Okonowsky v. Garland (No. 23-55404; Jul. 25, 2024), the Ninth Circuit reversed summary judgment against a Title VII sexually hostile environment action, finding that the court had erred by considering only some of the evidence and by applying incorrect legal standards. Emphasizing the ubiquitous nature of social media and its impact on the workplace, the Ninth Circuit’s decision provides guidance for employer best practices in investigating and responding to employee complaints arising out of off-duty social media use.

Lindsay Okonowsky was a female staff psychologist in a federal prison. She discovered an Instagram account in which a male colleague had posted hundreds of sexist, racist, anti-Semitic, homophobic, and transphobic memes that explicitly or implicitly referred to the Bureau of Prisons, prison staff, or inmates. Some of the posts referred directly to Ms. Okonowsky, including memes and jokes about sexual and physical violence. The page was followed by over 100 prison employees, including the Human Resources Manager, the Union President, and a member of the prison's Special Investigative Services. Ms. Okonowsky complained about the account to several prison supervisors. Some did not respond at all, and others stated that they found the account “funny” or did not see a problem with it. Although the prison eventually determined that the account’s author had likely violated the prison’s anti-harassment policy and sent a cease and desist letter to the offending employee, the Ninth Circuit held that a reasonable trier of fact could nonetheless find that the prison had violated Title VII.

The Ninth Circuit's decision provides several key takeaways for employers:

1. Off-premises conduct impacting the workplace remains actionable under Title VII: While it has long been settled that off-duty conduct impacting the workplace may be legally actionable under anti-discrimination laws, the Ninth Circuit specifically emphasized this principle in the social media context:

[I]t makes little sense to describe a social media page that includes overt comments about a specific workplace ... as ‘occurring’ in only a discrete location ... Social media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear. No matter where [the author] was or what he was doing when he made his posts, ... 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 Instagram page 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.

This confirms that employers must review and respond to employee complaints that other employees’ social media posts are creating a hostile work environment – even if those posts were created entirely during off-duty hours on a personal account.

2. A prompt, thorough investigation and appropriate remedial measures are required: Although the prison took some steps to address Ms. Okonowsky’s concerns – such as meeting with her, assigning a Special Investigative Agent to investigate, referring the complaint to the Office of Internal Affairs, reassigning Ms. Okonowsky to another facility, and convening a Threat Assessment Team – the Ninth Circuit determined that a trier of fact could find that the prison’s remedial measures were neither prompt nor effective. Indeed, several prison supervisors did not respond at all to Ms. Okonowsky’s complaints. The assigned Special Investigative Agent took no action for over three weeks, explaining that he “had other things going on” and “could not figure out how to print the memes.” During the delay, the frequency and intensity of posts on the Instagram account increased, causing Ms. Okonowsky to feel more and more uncomfortable in the workplace. This underscores the necessity of taking prompt action to investigate hostile environment concerns once raised.

3. Supervisors and Human Resources personnel should be trained on responding appropriately to hostile environment complaints: The Ninth Circuit additionally found fault with several aspects of the prison supervisors’ response to Ms. Okonowsky’s concerns – issues that likely could have been prevented through appropriate training. For example, several supervisors (including the prison's Safety Manager and Human Resources Manager) initially told Ms. Okonowsky that they found the Instagram account “funny” or did not see a problem with the posts. When the Special Investigative Agent met with Ms. Okonowsky about her concerns, the meeting occurred where others could see it, and some of the posts were printed on a public printer such that other employees could identify Ms. Okonowsky as having complained about the account.

The Ninth Circuit specifically criticized these actions as demonstrating a lack of regard for Ms. Okonowsky’s confidentiality and safety. Moreover, several supervisory employees followed the account and therefore knew of its content even before Ms. Okonowsky had complained. It is unclear whether those employees were aware of their reporting and investigatory duties, but there was no indication that any of them took steps to address the concerning social media posts before Ms. Okonowsky complained. These failures serve as a reminder to ensure that all employees are appropriately trained on the employer’s hostile environment policies and reporting expectations.

4. Title VII requires analysis of the “totality of the circumstances,” including posts that may not directly target the plaintiff: The Ninth Circuit held that the district court erred by limiting its analysis to only five posts – out of hundreds on the Instagram account – that specifically targeted Ms. Okonowsky or were based on her sex. Instead, the district court should have looked more broadly at the “totality of the circumstances," including but not limited to other posts that endorsed or made light of violence against women, espoused sexually discriminatory views towards women, targeted Ms. Okonowsky based on her appearance, reasonably appeared to have been intended to intimidate or discourage Ms. Okonowsky from making further complaints, or that flaunted the prison's workplace policies. The Ninth Circuit further explained that the “totality of the circumstances” may include posts that would not violate Title VII in and of themselves but nonetheless contribute to a hostile environment. Thus, employees assigned to investigate hostile environment concerns arising out of social media activity should not limit their investigation to only those posts directly referencing the complainant.

Given that an employee’s social media posts may contain a combination of protected and unprotected content, investigators should exercise caution to avoid running afoul of other laws while addressing hostile environment complaints. To the extent that a respondent's social media posts refer to terms and conditions of employment or to their religious and/or political views, investigators should carefully identify the specific content that violates the employer’s policies and not take adverse action against an employee based on legally protected activity or characteristics. Investigators should also consult with employment counsel to avoid running afoul of laws protecting employees’ right to engage in concerted activity under the National Labor Relations Act or prohibiting discrimination based on religious or political affiliation.

5. Evidence of other coworkers engaging with social media content is also relevant: Although the offensive Instagram account in the Okonowsky case was posted by only one employee, there was evidence that over 100 prison colleagues followed the account – with many of them “liking” and commenting on offensive posts. The Ninth Circuit found that evidence of other colleagues engaging with offensive social media content is relevant to whether the plaintiff experienced a hostile work environment. Thus, any workplace investigation should also examine whether other employees – even those that did not create or post from a particular account – “liked,” commented on, or shared the offensive content.

The Okonowsky decision confirms that social media can have a substantial impact on workplace culture, even when all of the posting and engagement occurs off-premises and during non-work hours. To reduce risk of a hostile environment claim, employers responding to employee complaints arising out of social media activity should take prompt steps to investigate and remediate these issues in accordance with the Ninth Circuit’s opinion.