“What Would You Do?” – Lessons from Okonowsky v. Garland (2024)

(How Your Employee’s Personal Social Media Account Can Create a Hostile Work Environment.)

You run a large company with a diverse workforce. A senior employee discovers that another manager, someone they interact with regularly, is operating a private Instagram account followed by over 100 coworkers, including HR and union leadership. The account contains sexually offensive content, memes depicting rape, violence, and even jokes explicitly targeting her, even one referencing a planned gathering at her home.

She reports it to her supervisors and HR. Some dismiss it as “funny.” The person appointed to investigate the complaint told her the content was “not a problem.” They investigate,  slowly.  During the investigation, the manager began to increasingly attack her, which she believed was an attempt to intimidate her and discourage her from making further complaints.  An internal review determined the posts violated policy and on the advice of legal counsel, send a cease-and-desist letter. But the harassment continued for almost a month. The hostility causes your senior manager to quit.

These are the basic facts presented in Okonowsky v. Garland.  The employee, a prison psychologist, filed suit under Title VII claiming a sexually hostile work environment. The government argued in part, stating the Instagram content occurred off‑site and was never shown to her at work, so it couldn’t be “workplace harassment.”

In today’s interconnected world, the traditional boundaries of the “workplace” have blurred, extending far beyond the physical office building. This change, largely driven by the widespread use of social media, introduces new and complex challenges for employers, especially regarding hostile work environments under Title VII of the Civil Rights Act of 1964. A recent Ninth Circuit Court of Appeals decision, Okonowsky v. Garland, highlights how off-site, online conduct can significantly affect your workplace culture and your legal liability.

The “New” Definition of the Workplace: Social Media is Always “On”

For too long, some employers might have assumed that what happens outside of work hours or off company property isn’t their concern. Okonowsky v. Garland firmly rejects this outdated idea, emphasizing that conduct that occurs outside of the physical work environment is part of the overall circumstances courts consider in hostile work environment claims.

The Key Takeaways:

• Social Media Posts Are Permanent and Infinitely Viewable: The court explicitly states 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”. This means that a seemingly “off-duty” post by an employee can be accessed, viewed, “liked,” commented on, shared, screenshotted, and printed by co-workers from anywhere, including the workplace. It’s not about where the conduct occurred, but its effect on the working environment.
• Standards of Conduct Apply Online, Anytime: For government agencies, and by extension, a strong lesson for private employers, government-wide standards of conduct apply to online communications at all times, regardless of whether employees are at work or using government equipment. These standards emphasize that employees must conduct themselves in a manner that does not discredit the agency and must “exercise extreme care” with comments that could show prejudice, as such communications “implicate the Department’s core mission of administering justice in a fair, effective, and even-handed manner”. This means that an employee’s personal online behavior, if it violates your company’s policies, can and will be scrutinized.

The Broadened Scope of Harassment: The “Totality of the Circumstances”

The Ninth Circuit reaffirmed that when assessing a hostile work environment claim, courts must look at the “totality of the circumstances”. This means the investigation cannot be limited to just a few direct incidents. Employers must consider:

• Conduct Not Expressly Targeting the Plaintiff: The district court in Okonowsky erred by limiting its consideration to only five posts that specifically targeted the plaintiff. The appellate court clarified that evidence of sexually harassing conduct is relevant even if it does not expressly target the plaintiff.
• Non-Sexual But Retaliatory or Intimidating Conduct: The “totality of the circumstances” also includes evidence of non-sexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating. In Okonowsky’s case, posts threatening her and denigrating her for complaining, even if not explicitly sexual, were highly relevant.
• The Cumulative Effect Over Time: No single factor is required, and courts must consider the cumulative effect of conduct over time. This means a pattern of behavior, even if individual instances seem minor, can collectively create a hostile environment.

Employer Responsibilities and Major Pitfalls to Avoid

Okonowsky illustrates how not to respond to harassment complaints, highlighting critical areas where employers often fall short and incur liability:

• Prompt and Effective Remedial Action is Paramount: An employer is liable if they fail “to take immediate and corrective action in response to a co-worker’s or third party’s sexual harassment” that they knew or should have known about. If the “remedy attempted is ineffectual, liability will attach”.
• Beware of “Lackluster” or Acquiescent Responses:
  • Dismissing Concerns: Initial reactions from management telling Okonowsky the posts were “funny,” or that she needed to “toughen up or get a sense of humor” were highly detrimental. An investigating agent’s dismissal of the content as “not a problem” further exacerbated the situation.
  • Breaching Confidentiality and Enabling Retaliation: When Okonowsky’s complaint was leaked, leading to an immediate, threatening, and sexually debasing post targeting her, it demonstrated a critical failure to protect the complainant.
  • Slow-Walked or Incomplete Investigations: The investigation was criticized for being “slow-walked,” with an agent admitting he “had other things going on” and “could not figure out how to print the memes”. A thorough and timely investigation is crucial.
  • Management Condescension or Endorsement: Evidence that management-level employees “condoned, acquiesced to, or otherwise reinforced” the harassing conduct is highly relevant. Managers who continued to follow the offensive account or found it “funny” were seen as reinforcing the behavior.
  • Ineffectual Remedies: While Hellman was eventually issued a cease-and-desist letter, he continued posting sexually hostile content for at least three weeks afterward with no response from the prison. A remedy’s effectiveness is judged by its “ability to stop harassment by the person who engaged in harassment”. An employer cannot simply issue a letter and assume the problem is solved if the behavior persists.
  • Lack of Follow-Through on Discipline: The record did not reflect that any investigation was ever completed or that Hellman faced sustained discipline, even months later. This signals to other potential harassers that rules can be flaunted with impunity.
• Supervisory Role Amplifies Severity: The fact that the harasser was a corrections Lieutenant, responsible for the safety of staff and inmates, and was a high-ranking law enforcement officer, significantly enhanced the objective severity and pervasiveness of his conduct. Harassment by those in positions of authority is viewed with particular gravity due to their “power and authority”.

Key Takeaways for Employers: Proactive Steps to Safeguard Your Workplace

✅Update Your Policies to Explicitly Cover Social Media: Ensure your anti-harassment and conduct policies clearly state that they apply to online communications, regardless of where or when they occur, if they impact the work environment.

✅Comprehensive Management Training is Non-Negotiable: Train all managers and supervisors on recognizing and responding to social media harassment. Emphasize the “totality of the circumstances” standard and the critical importance of prompt, effective, and confidential investigations.

✅Act Decisively and Effectively: When a complaint comes in, your response must be immediate, thorough, and genuinely stop the harassing behavior and deter future conduct. Do not just go through the motions.

✅Prioritize Complainant Protection and Confidentiality: Take all reasonable steps to ensure the safety and confidentiality of the complainant, understanding that breaches can lead to further harassment and liability.

✅Foster a Culture of Zero Tolerance: Your organization’s leadership must unequivocally condemn all forms of harassment, regardless of the medium or location, and demonstrate through action that such behavior will not be tolerated.

Mark Myles has been advising private and government enterprises on a wide range of matters for more than 25 years.  He currently focuses his practice on workplace investigations. He is a member of the Association of Workplace Investigators. For more information about employment issues or workplace investigations, please contact us at McKinley, Conger, Jolley & Galarneau.