Editor's Note
Workplace Harassment Outside of Work
Where is the workplace for discrimination and harassment?
It can be anywhere.
Why?
Because the internet—where geography is quaint.
So when employees are being less than mindful and demure on social media, the employer can be liable. But almost always, the employer has to know it's happening and the conduct has to spill into work enough that it makes sense for the employer to get involved.
I usually tell employers to stay out of employees' personal social media accounts. Don't monitor them, don't tell employees what say, or not say. That includes policies that require employees to post any of the ridiculous versions of "opinions are my own." It's meaningless and won't protect you.
There is a fundamental legal principle that if you control it, you're responsible for what happens. So, the more employers try to control employees' social posts, the more the door is open for someone to claim they are liable for what their employees do on social.
This article describes an egregious example of the exception to my general advice to stay out of it. In this case, employees and leadership were all connected on Instagram. A manager started attacking and making fun of an employee and harassing them based on multiple protected factors. Then other managers and employees piled on. When the employee complained, it just got worse.
If you are a manager or HR and are asking whether employees' conduct on social media is sufficient for the employer to step in, the answer is almost always yes. If it wasn't, you wouldn't know about it. But if you have any doubts, call in your friendly employment lawyer.
- Heather Bussing
The following may be a true story.
The events depicted allegedly took place in Lompoc, California, in 2020.
Out of deference to the judges involved, their names have not been used.
Out of respect for the victim, her story has been told as it was recorded in the court’s records.
I confess. Most of that intro is a riff on the opening lines from the Coen brothers’ 1996 classic Fargo.
What not to do when responding to a complaint of harassment
Dr. Lindsay Okonowsky was employed as a Staff Psychologist at the Lompoc Federal Correctional Facility.
Steven Hellman was a Lieutenant at the prison, with responsibility for overseeing the safety of prison staff.
Dr. Okonowsky and Mr. Hellman frequently disagreed about how to manage difficult inmates. (Apparently, Mr. Hellman didn’t think the answer was counseling.)
Then Dr. Okonowsky discovered that Mr. Hellman was operating an Instagram account containing numerous overtly sexist, racist, antisemitic, homophobic, and transphobic posts.
The account also included crude and degrading posts targeted at Dr. Okonowsky, including a joke about one of Mr. Hellman’s subordinates “gang banging her at her home.”
According to the evidence submitted by Dr. Okonowsky:
- More than 100 prison employees “followed” and “liked” Mr. Hellman’s Instagram posts, including the prison’s Human Resources Manager and Union President. (Lesson No. 1: HR Managers should be shutting down such activities, not following them.)
- When Dr. Okonowsky complained about the posts, prison management told her they were “funny.” (Lesson No. 2: When an employee complains about harassing conduct, be empathetic.)
- When management appointed someone to investigate Dr. Okonowsky’s complaint, the investigator summoned her to his office over the staff-wide radio system and met with her while other staff members were nearby. (Lesson No. 3: Do not broadcast, “Will the person complaining about sexual harassment please come to my office?” In other words, ensure confidentiality for the alleged victim.)
- When Dr. Okonowsky first met with the investigator, who happened to be a “subordinate” of Mr. Hellman, the investigator said that it was “not a problem”. (Lesson No. 4: Do not prejudge the complaint. Even if it lacks merit, an unbiased investigation is required.)
- Dr. Okonowsky’s questions about the status of the investigation often went unanswered, and the investigator told her the page was “not a problem”. (Lesson No. 5: When an employee complains of harassment, investigate it promptly. If you are too busy, find someone who isn’t.)
Nearly two months after she first complained, the prison issued Mr. Hellman a cease-and-desist letter. (Hallelujah!)
But he did not cease. Nor did he desist. He continued with the offensive posts for another month before he finally took down his Instagram page.
According to Dr. Okonowsky, Mr. Hellman’s conduct and the lack of a curative response drove her to leave the prison in search of a different job. I doubt any of you are surprised by that.
Four lessons in evaluating claims of harassment
Dr. Okonowsky filed a lawsuit asserting a single claim of sexual harassment in violation of Title VII.
After discovery was complete, a federal court entered summary judgment for the government and dismissed Dr. Okonowsky’s claims.
The court limited its consideration of Dr. Okonowsky’s evidence to five posts that the court concluded were targeted at her because of her sex.
Having limited its review to those five posts, the court then concluded that all five “occurred entirely outside of the workplace” because they were made on Mr. Hellman’s personal Instagram page and none were sent to Dr. Okonowsky, displayed in the workplace, or discussed with her in the workplace without her consent.
Based on those findings, the court concluded that the five posts did not amount to severe or pervasive harassment in the physical workplace.
Dr. Okonowsky appealed, and the U.S. Court of Appeals for the Ninth Circuit reversed the dismissal.
The reversal provides valuable lessons for evaluating claims of harassment in a world where anyone can broadcast just about anything via social media platforms:
- Lesson No. 1: Harassment claims must be evaluated based on all the relevant circumstances, which can include conduct that does not expressly target the plaintiff. In other words, all of Mr. Hellman’s sexist posts should have been considered, not just the ones targeted at Dr. Okonowsky.
- Lesson No. 2: The “relevant circumstances” can include evidence of non-sexual conduct directed at the plaintiff. That means Mr. Hellman’s posts that were intimidating or retaliatory also should have been considered.
- Lesson No. 3: The “relevant circumstances” are not limited to conduct that occurs in the physical workplace. As the Ninth Circuit concluded, this is especially true “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.” As a result, it was no defense that Mr. Hellman posted while off duty and did not post in the workplace.
- Lesson No. 4: The relevant standard for assessing the circumstances is whether the harassing conduct has an unreasonable effect on the working environment. As the court explained, “even if discriminatory or intimidating conduct occurs offsite, it remains relevant to the extent it affects the employee’s working environment.”
You’re not your brother’s keeper . . . except when you are.
What employees do during their “off” time is their business. But when that conduct creeps (or blasts) its way into the workplace and creates a hostile environment, employers cannot turn a blind eye to it or dismiss it as off-duty conduct beyond their control.
