Employee’s personal social media account may create hostile work environment

Workers continue to find new ways to create potential hostile work environment liability for their employers under Title VII of the Civil Rights Act of 1964. In June 2023, the U.S. 9th Circuit Court of Appeals (whose rulings apply to employers in all the states covered by West Employment Law Letter) held that offensive music played in a warehouse could provide the basis for a hostile work environment claim (see “Ignore offensive music, and you may have to pay the piper” in the August 2023 issue of the newsletter). In July 2024, the 9th Circuit made clear that posts on an employee’s personal social media account can give rise to a harassment claim if the content has “an unreasonable effect on the working environment.”

Conduct

Lindsay Okonowsky worked as a psychologist at a federal prison in Lompoc, California. In February 2020, the Instagram algorithm suggested she follow an account she soon learned had been created by a Lompoc prison supervisor, Steven Hellman.

As described by the court, the month-old account contained “hundreds of posts, many of which were overtly sexist, racist, anti-Semitic, homophobic, and transphobic memes that explicitly or impliedly referred to” Lompoc staff and inmates. Some displayed or suggested sexual contact or violence against women generally, while others targeted Okonowsky specifically.