Okonowsky v. Garland – Off-Duty Social Media Posts May Contribute to a Hostile Work Environment Under Title VII

AJ Carter, Law Clerk

On July 25, 2024, the Court of Appeals for the Ninth Circuit in Okonowsky v. Garland held that social media posts made by a coworker outside of work may be considered part of the overall totality of circumstances in evaluating an employee’s Title VII claim for a hostile work environment based on sex. This recent ruling by the Ninth Circuit is a salient reminder to employers that they may be held accountable for employee conduct on social media, even when it occurs outside of work hours, and such off-duty activities may have particular relevance for Colorado employers under the Protecting Opportunities and Workers’ Rights (“POWR”) Act.

Okonowsky v. Garland - Background

Okonowsky concerns a plaintiff’s claim of sex discrimination under a hostile work environment theory under Title VII of the Civil Rights Act of 1964 (“Title VII”).  The plaintiff, a psychologist at a federal prison, alleged that her male coworker posted violent and sexually suggestive content on his personal social media account. Despite the plaintiff’s numerous complaints, the coworker continued posting offensive material even after the prison instructed him to stop doing so.

The District Court limited its review of the coworker’s off-duty social media activities to five Instagram posts that specifically targeted the plaintiff and granted summary judgment in favor of the prison because the coworker did not send the posts to the plaintiff directly, show plaintiff the posts while in the workplace, or discuss the posts with the plaintiff while in the workplace and without her consent.

The Ninth Circuit reversed the District Court’s decision for multiple reasons.  First, it found that the District Court’s focus on only five posts which appeared to directly target the plaintiff was myopic and contrary to Title VII because harassing conduct may include conduct that is not specifically directed towards a plaintiff under the law.  The court also found that the District Court failed to draw reasonable inferences in plaintiff’s favor when it disregarded the coworker’s posts that were directed to the prison’s psychology department at large, finding that a jury could reasonably infer that the posts were meant to target the plaintiff.  Regarding the District Court’s emphasis on the worksite location and the harassing conduct, the Ninth Circuit clarified that the key factor was not where or when the posts were made, but rather the impact of the content on the workplace environment. Given that courts must evaluate the totality of the circumstances when determining whether allegedly harassing conduct is sufficiently severe or pervasive to be actionable under Title VII, the court determined that the coworker’s off-duty conduct could have the effect of altering the workplace environment in an objectively severe and/or pervasive way. 

Another crucial factor considered by the Ninth Circuit was the prison’s anemic response to the plaintiff’s harassment complaints, as a failure to take prompt and effective action can strengthen a hostile work environment claim under Title VII.  The court disagreed with the District Court’s finding that the prison took prompt and immediate action, as the plaintiff produced evidence that the prison’s investigations were delayed unreasonably and that the prison’s tepid responses ultimately had the effect of reinforcing, rather than remediating, the harassing conduct (such as, for example, evidence that certain members of management continued to follow the coworker’s Instagram page despite knowing of plaintiff’s complaints about its content).

The Significance of Okonowsky to Colorado Employers Under Colorado’s Protecting Opportunities and Workers’ Rights Act (“POWR”) [1]

The Okonowsky court’s recognition that wholly off-duty conduct may lead to actionable harassment claims may have particular significance for Colorado employers given the recent passage of the POWR Act.  The POWR Act revised the Colorado Anti-Discrimination Act’s (“CADA’s”) definition of harassment by removing the requirement that it be “severe or pervasive,” in contrast to Title VII under Colorado law, harassment is defined as conduct or communication that is both subjectively offensive to the person experiencing it and objectively offensive to a reasonable person in the same protected class.[2]  A single isolated incident (as opposed to a severe or pervasive course of conduct) may be actionable, so long as the harassing conduct has the effect of unreasonably interfering with a plaintiff’s work performance or has the effect of creating an intimidating, hostile, or offensive working environment.  

Accordingly, if Colorado courts deciding Colorado law follow Okonowsky’s lead, it is at least possible that even isolated off-duty social media activity may be actionable under CADA and the POWR Act if it has the effect of creating a hostile work environment under the POWR Act’s subjective and objective standards.  

Employer Considerations

The lines between work and off-duty conduct are becoming increasingly blurred, and employers must recognize that offensive social media posts made outside of work can still impact the workplace and give rise to legal claims, particularly given Colorado’s liberal definitions of what may constitute actionable harassment under the POWR Act. Employers should endeavor to review or update their anti-harassment policies and training programs to explicitly address off-duty and online behavior that could be construed as obscene, offensive, or harassing to coworkers (particularly any online behavior directly or indirectly targeting specific individuals or a protected class of individuals).  Additionally, employers should be prepared to swiftly investigate and remediate any complaints involving off-duty misconduct.  Campbell Litigation remains available to assist with these and other developments in federal and state law regarding hostile work environment claims

[1] See https://leg.colorado.gov/sites/default/files/2023a_172_signed.pdf for the full text of the POWR Act.

[2] See Colo. Rev. Stat. § 24-34-402(1.3)