Are Employees Protected From A Co-Worker’s Sexually Harassing Instagram Posts?

Through their decades of experience handling sexual harassment cases, our sexual harassment lawyers in Citrus County, Florida know that employers maintain that employees are not protected from a co-worker’s sexual conduct that took place outside of the physical workplace. Stated another way, employers maintain that they are under no obligation to protect employees from a co-worker’s sexual conduct that occurred outside of the workplace. Based on these positions, employers further maintain that a co-worker’s sexual conduct that took place outside of the physical workplace cannot create a hostile work environment or constitute a basis for a hostile work environment claim. According to employers, therefore, a co-worker’s sexual conduct that occurred outside of the physical workplace has no effect on the victim’s working environment.

Taking these positions to their logical extreme, employers also maintain that employees are not protected from any sexual content posted on a co-worker’s social media account unless the co-worker made the post while at work or from work. If the co-worker did not make the post while at work or from work, then employers contend that the sexual conduct took place outside of the physical workplace and cannot create a hostile work environment or constitute a basis for a hostile work environment claim. According to employers, therefore, sexual content posted on a co-worker’s social media account has no effect on the victim’s working environment unless the co-worker made the post while at work or from work.

In this article, our sexual harassment lawyers in Citrus County, Florida explain how the decision in Okonowsky v. Garland, 109 F.4th 1166 (9th Cir. 2024) demonstrates that employees are protected from sexual content posted on a co-worker’s social media account regardless of whether the co-worker made the post while at work or from work.

Sexual Harassment Lawsuit

In that case, a woman named Okonowsky brought a sexual harassment lawsuit against her former employer, the Bureau of Prison’s (“BOP”), pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII protects employees from discrimination on the basis of sex. Under well-established law, sexual harassment is a form of sex discrimination prohibited by Title VII. To violate Title VII, sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment. Okonowsky alleges that, during her employment the BOP, she was sexually harassed in violation of Title VII.

Okonowsky worked as a staff psychologist at a federal prison, Federal Correctional Complex Lompoc. Okonowsky alleges that a corrections Lieutenant, with whom she worked, operated an Instagram account that contained sexually offensive content and that she was a personal target. Okonowsky claims that the Lieutenant made hundreds of posts over a five-month period, often posting multiple times per day. Okonowsky contends that many of his posts about women in the workplace were denigrating, suggestive of violence, and encouraged or at the very least made light of sexual harassment in the workplace. The Lieutenant also posted about Okonowsky’s all-male co-workers having sex with her and described her in vulgar sexual terms.

When Okonowsky complained about the Instagram posts to prison leadership, management told her that the posts were “funny,” and the investigator whom the prison appointed to investigate Okonowsky’s complaint told her that the content of the posts was not “a problem.” Okonowsky contends that the Lieutenant began to increasingly target her with his posts in what Okonowsky perceived to be an effort to intimidate her and discourage her from making further complaints.

Two months after Okonowsky first reported the Lieutenant’s behavior, the BOP directed the Lieutenant to cease acting in violation of the BOP’s Anti-Harassment Policy. The Lieutenant continued posting sexually hostile content for another month with no actin by the BOP. The Lieutenant’s conduct and the prison’s lack of a curative response to it ultimately drove Okonowsky to leave the prison in search of a different job.

Protection Against Social Media Posts

The trial court dismissed Okonowsky’s sexual harassment claim. In doing so, the trial court rubber-stamped the BOP’s argument that Okonowsky failed to establish a hostile work environment because the only relevant conduct at issue—the Instagram posts—all “occurred outside of the workplace.” Thus, the trial court ruled that conduct that took place outside of the physical work environment cannot create a hostile work environment as a matter of law. On appeal, the Ninth Circuit reversed the trial court’s decision and reinstated Okonowsky’s sexual harassment claim.

In reversing the trial court, the Ninth Circuit found that the trial court’s decision was “legally and factually erroneous.” Unlike the reversed trial court, the appellate court explained that whether a working environment is hostile or abusive is determined by the “totality of the circumstances.” Unlike the reversed trial court, the appellate court pointed out that courts “have held that conduct that took place outside of the physical work environment is part of the totality of the circumstances [courts] evaluate when considering a hostile work environment claim.” “The relevant standard,” the court of appeals observed, “requires [courts] to assess whether the harassing conduct had an unreasonable effect on the working environment and, if so, to consider whether and how the employer responded to that effect.”

In “applying that standard,” the Ninth Circuit explained, courts “have concluded that offsite and third-party conduct can have the effect of altering the working environment in an objectively severe or pervasive manner.” As a result, “even if the discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent that it effects the employee’s working environment.” Applying that principle to the facts, the court of appeals found that “Okonowsky has adduced ample evidence that [the Lieutenant’s] sexually discriminatory conduct made it more difficult for her to do her job, to take pride in her work, and to desire to stay in her position.” Thus, the Ninth Circuit concluded that the BOP’s argument that the Lieutenant’s social media posts ‘occurred’ outside of work, and thus could not be considered in the totality of the circumstances surrounding Okonowsky’s Title VII claim, rings hollow.”

Free Consultation For Harassment Victims

One of the most critical decisions sexual harassment victims must make is which sexual harassment lawyers to consult regarding their sexually hostile work environment. As part of our commitment to helping sexual harassment victims, an experienced sexual harassment attorney will speak with you personally and you will receive the individualized attention your case deserves. We offer free confidential case evaluations for employees, and you will not have to pay to speak with our sexual harassment lawyers regarding your rights. We are available for consultation at your convenience, including scheduling telephone consultations for evenings and weekends.

Citrus County Sexual Harassment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment attorneys in Citrus County, Florida have fought for the rights of sexual harassment victims for more than twenty years. If you have experienced sexual harassment in the workplace or have questions about your rights a sexual harassment victim, please contact our office for a free consultation with our sexual harassment lawyers in Citrus County, Florida. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.