Question: I heard that one of my employees is posting about another employee on social media. This is outside of work, but is this something I should monitor?
Answer: Yes, you should monitor the situation, especially if the employee complains to you about the posts. While social media provides opportunities for communication and networking, it can also blur the lines between personal expression and harassment in the workplace. When employees use social media to target, harass, or intimidate others, it can foster a hostile work environment. Such actions, whether intentional or not, can be considered harassment and have consequences for both the individuals involved and the organization. Given these challenges, it is important to understand how misuse of social media can escalate to harassment and the steps organizations must take to prevent and address these situations.
The case of Okonowsky v. Merrick Garland highlights this issue. In this case, a staff psychologist at a federal prison claimed that her co-worker’s sexually inappropriate social media posts created a hostile work environment. Despite reporting the issue to her employer, no action was taken. The employee then resigned and filed a lawsuit.
Initially, the trial court ruled in favor of the prison finding that because the conduct did not occur in the workplace, the posts were made on a personal account, and the posts were not shared or discussed with the plaintiff at work, the posts did not constitute workplace harassment. The trial court reasoned that the posts did not rise to the level of severe or repeated harassment within the physical workplace. The trial court granted summary judgement in favor of the prison based on its finding that there was no legitimate issue regarding the plaintiff’s work environment being objectively hostile as a result of the social media posts.
The employee appealed the decision, and the U.S. Court of Appeals for the Ninth Circuit sided with the employee. The Ninth Circuit held that, under certain circumstances, social media posts outside of the workplace may influence physical workplace conditions and constitute workplace harassment. The court stressed that harassment is not confined to the physical workplace, as social media interactions can impact the work environment even if they occur offsite and outside of work hours. The court further noted that social media posts are permanent and accessible by anyone, and that offsite discriminatory or intimidating conduct remains relevant if it at all affects the workplace. The Ninth Circuit ultimately sent the case back to the trial court for a potential jury trial on the harassment claim.
The Equal Employment Opportunity Commission (EEOC) provides further guidance on this topic. In its guidance, the EEOC states that harassment that affects the work environment can occur even outside of the workplace, including through online communication. The EEOC notes that conduct does not have to occur in a work-related context to affect the terms and conditions of employment. Such conduct includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.
The Okonowsky case demonstrates that employers can be held responsible for harassment that occurs outside of the workplace if it negatively affects the working environment, particularly when it involves social media or other forms of electronic communication. Employers must take complaints of harassment seriously, investigate them appropriately, and take action to address them. Employers with questions about specific situations that arise may contact their labor counsel.