Beware Personal Social Media Lead to Liability

In the past, employers were generally comfortable drawing a bright line between what employees did on their own time outside of the workplace and conduct that occurs ever, employers and HR managers may need to reassess how they approach workplace harassment claims as a result of the virtual world in which today’s workforce operates. This is particularly true with the advent and proliferation of social media.

A recent Ninth Circuit Court of Appeals decision involving outside-of-work social media posts giving rise to a sexually hostile work environment claim demonstrates this point.

InOkonowsky v. Merrick Garland, the Ninth Circuit recently overturned a trial court’s decision on summary judgment in favor of the employer in a sexual harassment case brought under Title VII of the Civil Rights Act of 1964. The Ninth Circuit ruled that under Title VII, employers can be held liable for claims of a sexually hostile work environment if an employee shares sexually hostile and harassing content on their personal social media that negatively impacts the workplace.

The case was brought by a staff psychologist working at a federal prison in California. The psychologist claimed that her employer, the Federal Bureau of Prisons, failed to take adequate measures to address a sexually hostile work environment created by her co-worker, a corrections Lieutenant with whom the psychologist worked and who was responsible for overseeing the safety of guards and prison staff in the psychologist’s unit.

The psychologist claimed that the Lieutenant operated an Instagram account that contained hundreds of sexually offensive posts about work, many of which were overtly sexist memes that explicitly or implicitly referred to prison staff and inmates. Notably, many of the sexually harassing posts or comments on the Instagram page referred to the psychologist specifically, meaning she was a personal target.

The Instagram page was followed by more than
100 prison employees, including many of the psychologist’s coworkers, prison senior management, the Human Resources Manager, and the Union President.

The Ninth Circuit observed that most of the derogatory posts were too graphic and disturbing to republish. The posts were vulgar, suggestive of rape and physical harassment, and depicted scenes of not only sexual violence against women in general, but also against the psychologist in particular. For example, on one occasion, the Instagram page joked about the male prison officers performing sexual acts on the psychologist at her home, which was liked by some prison staff members.

When the psychologist complained about the page to prison leadership, management told her the page was “funny”; the investigator whom the prison appointed to investigate her complaint told her the page’s content was not “a problem.” After the psychologist voiced her complaints to her superiors, the Lieutenant began to increasingly target the psychologist in his posts in what the psychologist reasonably perceived to be an effort to intimidate her and discourage her from making further complaints.

Two months after the psychologist first reported the inappropriate posts on the Instagram page, the prison directed the Lieutenant to cease acting in violation of the prison’s anti-harassment policy. However, the Lieutenant continued posting sexually hostile content for another month with no action by the prison. The psychologist eventually resigned due to the Lieutenant’s conduct and alleged lack of action by the prison, and she subsequently filed a lawsuit.

The trial court granted summary judgment to the prison, ruling that the Instagram posts were “entirely outside of the workplace” because they were made on an employee’s personal social media account, and none of the posts were ever sent to the psychologist, displayed in the workplace, shown to the psychologist in the workplace, or discussed with her in the workplace without her consent.

The district court concluded that there was no triable issue as to whether the psychologist’s work environment was objectively hostile because, in…