Off-Duty Social Media Posts Can Constitute Sexual Harassment 

The Ninth Circuit Court of Appeals, which has jurisdiction over Nevada, recently addressed when personal social media activity outside of work can create a hostile work environment an employer is obligated to remedy. The Court’s decision makes clear that when evaluating off-duty, offensive social media posts, the employer should focus on whether the posts violate policy and are having an unreasonable adverse effect on the work environment. If so, the employer is obligated to take action to remedy the harassment even though the posts might constitute off-duty conduct. 

In this case, Okonowsky v. Garland, a prison psychologist repeatedly complained about a Lieutenant’s Instagram page where he frequently posted about work over a five-month period. His posts were graphic and suggestive of rape and physical harassment of women; approximately five of his posts directly targeted the psychologist, joking about sexually assaulting and shooting her and making fun of her appearance and her complaints about his Instagram page. 

The Instagram page was actively followed by employees and supervisors, including the Director of Human Resources, the Union President, and the Safety Manager. Many employees “liked” the posts and commented favorably on them, and the psychologist witnessed coworkers discussing and laughing about the page at work. Managers in charge of enforcing workplace policies and investigating her complaints told her the page was “funny” and “not a problem.” The Court found that this behavior contributed to the psychologist’s hostile work environment. 

The Court rejected the notion that only conduct which occurred inside the physical workplace could lead to liability for sexual harassment. The Court explained that the crucial question is not whether the alleged harasser posted offensive material from work, but rather whether his discriminatory conduct and the conduct of his coworkers viewing the page had an unreasonable effect on the psychologist’s work environment. The Court also determined that all sexually offensive posts were relevant to the investigation and litigation, not just those directed at the psychologist.

This decision is important to all Nevada employers who can consider off-duty or online harassment in their investigations and the impact such behavior is having in the workplace. While employers should not monitor employee’s social media posts, when a complaint is made that social media is being used to harass a worker, employers must take action to investigate. Evidence must be carefully analyzed, however, as some posts may not be relevant or may be protected, for public employees, by the First Amendment. Additionally, harassment policies and training sessions should carefully address how and when online and off-duty conduct can lead to discipline.

KZA attorneys have decades of experience with investigating and litigating sexual harassment complaints. If you are investigating a complaint involving off-duty or online conduct or you are updating your harassment policies or training materials to address off-duty material, contact a KZA attorney for guidance. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.