Login | November 21, 2024
Private social media posts may bind employers: 9th Circuit
RICHARD WEINER
Technology for Lawyers
Published: October 25, 2024
Hostile workplace environments may not only be confined to physical space, according to a decision by the 9th Circuit Court of Appeals.
California’s 9th Circuit, which is a leading U.S. court on social media decisions, recently held that private social media messages on a platform for employees might generate a hostile workplace environment.
In Okonowsky v. Garland (No. 23-55404; Jul. 25, 2024), the court reversed a summary judgment by a district court and sent the case back to trial.
Plaintiff Lindsey Okonowsky was a staff psychologist in a federal prison. She discovered a private Instagram account that that was followed by about 100 fellow employees. The account contained, according to the complaint, hundreds of posts by a fellow male employee that contained sexist, racist, anti-Semitic, homophobic and transphobic posts, some of which referenced Okonowsky.
Some of the posts that referenced Okonowsky included memes and “jokes” about sexual and physical violence.
Additionally, the followers of that account included the human resources manager, the head of the union and other supervisory personnel.
When Okonowsky complained to various supervisors, they either didn’t respond or said that they had no problem with it.
Eventually, though, the prison sent the account holder a cease and desist letter, which the appellate court seemed to think was too little, too late.
In finding that the actions of the employer may have violated Title VII protections against workplace harassment, the appellate court held that off- premises conduct remains actionable.
While that has long been the case, in the Okonowsky decision the court specifically brought social media into that context, stating that employees could access the page at any time, and that the 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.”
And the court found that “it made little sense” to call social media posts out-of-workplace in general anyway.
The prison did take some remedial steps, including creating an action team and assigning the plaintiff to another facility (!), but the court ruled that this was insufficient and that prompt and thorough investigation was required (and didn’t happen).
So, if you represent employers, you might want to make them aware of this holding.
Better safe than sorry, right?
Thanks to the Farella Braun and Martell firm for the analysis.