Workers continue to find new ways to create potential hostile work environment liability for their employers under Title VII of the Civil Rights Act of 1964. In June 2023, the U.S. 9th Circuit Court of Appeals (whose rulings apply to employers in all the states covered by West Employment Law Letter) held that offensive music played in a warehouse could provide the basis for a hostile work environment claim. In July 2024, the 9th Circuit made clear that posts on an employee’s personal social media account can give rise to a harassment claim if the content has “an unreasonable effect on the working environment.”
Lindsay Okonowsky worked as a psychologist at a federal prison in Lompoc, California. In February 2020, the Instagram algorithm suggested she follow an account she soon learned had been created by a Lompoc prison supervisor, Steven Hellman.
As described by the court, the month-old account contained “hundreds of posts, many of which were overtly sexist, racist, anti-Semitic, homophobic, and transphobic memes that explicitly or impliedly referred to” Lompoc staff and inmates. Some displayed or suggested sexual contact or violence against women generally, while others targeted Okonowsky specifically.
Most of the posts were “too graphic and disturbing” for the court to include in its opinion, but it cited one example—a post “joking” that male custody officers would “gang bang” Okonowsky during a party for prison staff she was planning to host at her home. Hellman’s account was followed by more than 100 prison employees, including several members of upper management.
Okonowsky promptly complained to prison management about Hellman’s account, but the response was underwhelming. Her emails to the warden went unanswered. The safety manager and HR manager (who both followed the account) told her they found it “funny.” A special agent assigned to investigate said he didn’t “see anything that was a problem” and waited three weeks to refer the matter to Internal Affairs. To make matters worse, after she complained, Okonowsky was targeted more often by the account.
After two months, a new warden ordered an investigation, and the prison directed Hellman to stop violating its antiharassment policy. Instead, he continued to post sexually hostile content for another month with no consequences. Okonowsky ultimately transferred to another facility in Texas and filed suit.
After considering just five of the account’s posts (all targeting Okonowsky specifically), the trial court granted summary judgment (dismissal without a trial) in favor of the prison, finding that (1) the posts occurred “entirely outside the workplace” and did not constitute severe or pervasive harassment, and (2) even if the posts were harassing, the prison took reasonable remedial actions.
The 9th Circuit disagreed on all counts. First, the appeals court affirmed that evaluating a hostile work environment claim requires review of the “totality of the circumstances,” including sexually harassing conduct that doesn’t expressly target the employee filing suit.
Second, the court “reject[ed] the notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.” The court observed that “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,” and that Hellman’s Instagram page recorded which employees followed it and liked or commented on posts. In short, “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.” Employers that offer partially or fully remote work environments, take heed.
The 9th Circuit further stated that a reasonable juror could find management contributed to the hostile environment by following Hellman’s page (including after she complained) and endorsing its content as funny. It concluded Okonowsky presented ample evidence that Hellman’s conduct “made it more difficult for her to do her job.”
Finally, the court held that reasonable jurors could find the prison’s response was “neither reasonably immediate nor effective.” While it took some initial steps, there was evidence that multiple members of management were indifferent to Okonowsky’s safety and confidentiality and “slow-walked” an investigation, allowing the online harassment to continue for three months after she first complained. Okonowsky v. Garland (9th Cir., July 25, 2024).
The 9th Circuit’s decision doesn’t hold the prison liable, but it does allow Okonowsky to take her claims to trial, which creates risk for the prison of a substantial jury verdict in her favor. Although personal social media posts may be a new source of harassment claims, this case illustrates an old lesson: The combination of abhorrent conduct and a slow and ineffective investigation is a bad one for employers.
Jill Chasson is a partner at Coppersmith Brockelman PLC in Phoenix, Arizona. Well versed in the many federal and state laws that govern the workplace, Jill regularly works with businesses of all sizes to develop workplace policies and resolve difficult personnel issues. When disputes arise, she represents employers before administrative agencies, in arbitration proceedings, and in state and federal court.
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