JT Washington
Today, technology and social media are integral parts of our daily lives. Social media has transformed how we communicate and express ourselves. However, this transformation has brought new challenges, particularly in the workplace, where online behavior can have significant repercussions. Recent legal cases have demonstrated what happens on social media does not always stay online and can contribute to a hostile work environment or harassment if it impacts an employee’s working conditions. This encompasses behavior that may not occur in the physical workplace but still affects the overall work environment. Employers are required to promptly and effectively address harassment, irrespective of where it takes place, including on social media.
A recent ruling by the U.S. Court of Appeals for the Ninth Circuit, in the case of Okonowsky v. Garland, has emphasized this reality. 109 F.4th 1166. The court held that an employer could be held liable for a hostile work environment claim based on harassing content posted on an employee’s personal social media account, even if the conduct occurred outside the physical workplace. This decision builds upon earlier guidance from the Equal Employment Opportunity Commission (“EEOC”), which warned that employers might be liable for non-work-related conduct when it affects the workplace environment. The ruling underscores the growing influence of social media in shaping workplace dynamics and the potential legal ramifications for employers who fail to address harassment that originates online but permeates the workplace.
The Okonowsky case involved a federal prison psychologist who became the target of harassing social media posts made by a corrections lieutenant. These posts, which included sexually explicit and violent content directed at the psychologist, were made on the lieutenant’s personal Instagram account. Despite the fact that these posts occurred outside of work hours and off-site, they were followed by many of the prison’s employees, including those in management and HR roles, who interacted with the posts through likes and comments.
The Ninth Circuit rejected the district court’s initial ruling that the conduct was not actionable because it occurred outside the workplace. The appellate court emphasized that the pervasive nature of social media blurs the distinction between personal and professional spaces. The court noted that social media posts are “permanently and infinitely viewable” by anyone with access to the account, making it impossible to confine their impact to a specific location. As a result, the court concluded that even off-site and third-party conduct could contribute to a hostile work environment if it affects an employee’s working conditions.
This ruling serves as a critical reminder for employers: they cannot ignore online behavior simply because it happens outside of work. The decision in Okonowsky highlights the importance of updating anti-harassment and social media policies to clearly address online interactions that may lead to workplace harassment. Employers must also ensure that their training programs equip managers and employees with the tools to recognize and appropriately respond to harassment that occurs on social media.
In light of these developments, employers should take proactive steps to safeguard their workplaces from the potential fallout of online misconduct. This includes not only updating policies and training but also ensuring that any complaints related to social media harassment are taken seriously and addressed promptly. Failure to do so could expose employers to significant legal risks, as courts are increasingly willing to hold companies accountable for the actions of their employees online. As the Okonowsky case illustrates, the digital age requires a new approach to managing workplace behavior—one that considers the full scope of how social media can impact the work environment.
