The advent of social media has been a global sea change over the last fifteen years. Through apps like Instagram, Facebook, and TikTok, people are more connected than ever, inviting others into their lives with posts that can be accessed from any place at any time. This has blurred the line between our professional and personal lives, as coworkers choose to follow each other on social media, gaining a window into their coworkers’ personal lives. While much of what appears on social media consists of cute puppies, fun beach vacations, or the latest viral memes, what happens when content goes beyond that? What happens when content becomes so personal in nature that it makes a coworker uncomfortable in the workplace?
Earlier this year, a court case gave the United States Court of Appeals for the Ninth Circuit an opportunity to establish groundbreaking precedent. In this new era of a social workplace, the court ruled that an employer’s obligations to their employees extend into the realm of social media.
In July 2024, the Ninth Circuit overturned a trial court decision that had ruled in favor of the employer— in this case, the federal government’s Bureau of Prisons—in a sexual harassment case brought under Title VII of the Civil Rights Act of 1964. In Okonowsky v. Garland, a staff psychologist in a federal prison reported to the Bureau that her coworker had posted derogatory and sexually explicit posts and comments about her on the coworker’s personal Instagram account. The account was followed by more than 100 prison employees, some of whom liked and commented on the posts.
The psychologist reported the account to the Bureau, but the coworker continued to post harassing content even after being reminded of the Bureau’s anti-harassment policy and instructed to stop. Frustrated by the lack of action and the ongoing harassment, the psychologist eventually quit her job and brought a hostile work environment claim against the Bureau. The district court ruled in favor of the Bureau, finding that it wasn’t responsible for creating a hostile work environment because the harassment occurred “entirely outside the workplace” since the posts were not created or shown at the physical workplace.
The Ninth Circuit soundly rejected this reasoning. The court held that it did not matter that the harassing posts were made outside work hours because they were viewable from anywhere, including the workplace. The court also noted that in analyzing a hostile work environment claim, the analysis does not only hinge on where the harassment occurred but also on whether it had “an unreasonable effect on the working environment”.
Citing the “ubiquity of social media and the ready use of it to harass and bully both inside and outside the physical workplace,” the court held in favor of the psychologist. It determined that the harassing posts had indeed extended their influence into the workplace, creating a hostile work environment. The court also rejected the idea that any type of remedial action by the employer shielded it from liability for hostile work environment claims.
In this case, the employer opened an investigation, reassigned the psychologist, and issued a cease-and-desist letter to the coworker. However, the court took issue with the timeliness of these actions, ultimately finding that the measures taken by the Bureau were insufficient to adequately address the harassment.
The court was careful to underscore the “ubiquity of social media,” thus creating a new risk for employers to consider and work to mitigate. One risk mitigation measure would be to review anti-harassment policies and ensure that social media post harassment is explicitly addressed in employee handbooks. Any complaints lodged by employees should be expeditiously and thoroughly investigated, with the knowledge that the Ninth Circuit has set a high standard for reasonable remediation of any complaints.
Another risk mitigation strategy involves conducting background checks that include a thorough screening of a job candidate’s social media presence. Background checks are already a standard part of most employers’ pre-employment screening processes, and the Ninth Circuit’s ruling on post harassment adds a compelling reason to include social media checks as a minimum standard of care. This protects both the business and existing employees when bringing new employees on board.
Social media checks evaluate the public social media accounts of an individual and can flag any person that has a history of bullying people on the internet or has contributed to online harassment by engaging with or amplifying harmful content from other accounts. A social media check can also be useful in evaluating an employee’s claim of harassment, allowing employers to quickly evaluate the veracity and prevalence of any complaints lodged by an employee. By integrating social media checks into an overall risk mitigation program, employers can decrease the likelihood of hiring someone with a history of using social media to harass others or a proclivity for spreading negativity online. If you’re looking to strengthen your risk mitigation efforts, Checkers International can help with comprehensive background checks, including social media screenings, to ensure you’re making informed hiring decisions. Contact us today to learn more about how we can assist you in protecting your organization and maintaining a safe, respectful workplace.
This article is for informational purposes only and should not be considered legal advice, guidance, or counsel. We recommend consulting with employment counsel to determine the appropriate next steps for your organization.
Erica Lucero Alden spent over a decade doing unscripted and scripted Business & Legal Affairs and Production Legal for NBCUniversal and Netflix. Her first job was Diligence Counsel at NBCUniversal, and she couldn't resist returning to her roots as COO and General Counsel at Checkers International. She enjoys wandering her Los Angeles neighborhood with her partner and two sons, improving her tennis game and watching the sky change during sunset with a seasonal beverage in hand.
