When Social Media Crosses the Line: Ninth Circuit Confirms Online Posts Can Constitute Workplace Harassment

This article is from VitalLaw: https://www.vitallaw.com/news/expert-insights-when-social-media-posts-become-workplace-harassment/eld01731033c7fee540918b5513a362d27cdc In a landmark decision with far-reaching implications for employers across the country, the U.S. Court of Appeals for the Ninth Circuit recently ruled that off-duty social media activity can contribute to a hostile work environment, making employers liable under Title VII of the Civil Rights Act of 1964.

The ruling in Okonowsky v. Merrick Garland, delivered on July 25, 2024, is the first federal appellate decision to apply the EEOC’s updated April 2024 guidance on sexual harassment involving social media. This case sets a critical precedent: harassing content shared by an employee on their personal accounts can create legal exposure for employers if it impacts the workplace.

The Case: Hostile Work Environment from Outside the Office

In Okonowsky, a staff psychologist at a federal prison alleged that a coworker repeatedly posted sexually harassing content on social media, targeting her indirectly. Although she reported the conduct and the employer issued a directive for the coworker to stop, the posts continued. Eventually, the psychologist resigned and filed a lawsuit alleging that her employer failed to address a hostile work environment.

The trial court initially sided with the employer, arguing that because the posts were made on a personal account and outside the workplace, they didn’t qualify as workplace harassment. However, the Ninth Circuit overturned that decision, emphasizing that the impact of the harassment—not its location—is what matters.

The court concluded:

"Social media posts are permanently and infinitely viewable… even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.”

The case has now been sent back to the lower court for further proceedings.

EEOC Guidance Supports the Ruling

The Ninth Circuit’s decision aligns closely with updated EEOC guidance, which clarifies that:

• Employers may be liable for off-duty or offsite conduct, including social media posts, if the behavior affects the terms and conditions of employment

• Hostile work environment claims may arise even when the harassing conduct occurs via private phones, emails, or personal accounts

This means the bar for employer liability has shifted—and social media is now firmly in the spotlight when it comes to workplace harassment investigations.

What Employers Need to Do Now

Given the evolving legal landscape, employers must take proactive steps to mitigate risk and foster a safe, inclusive workplace. Here’s how:

1. 🔍 Investigate Complaints Thoroughly

Don’t dismiss social media-related complaints as “off-duty” issues. If a post, message, or comment affects the employee’s ability to work or creates a hostile atmosphere, it warrants a prompt and thorough investigation.

2. 📘 Update Your Policies

Review and revise your:

• Anti-harassment policy to include online behavior

• Social media policy to clarify expectations for employee conduct both during and outside of work

• Reporting protocols to ensure employees know how to safely bring forward concerns

3. 🧠 Train Your Leadership Team

Ensure that managers, supervisors, and HR personnel are trained to:

• Recognize the signs of hostile work environment claims—even if they originate online

• Understand how to respond to social media harassment allegations with consistency and care

• Maintain documentation and communicate decisions clearly to all parties involved

4. 📣 Promote Awareness Among All Employees

Educate staff on how off-duty conduct—especially public or semi-public online posts—can affect the workplace and expose both the employee and employer to legal consequences.

Final Thoughts

The Okonowsky decision and the EEOC’s updated guidance underscore an important truth: the lines between workplace conduct and online behavior are more blurred than ever. Employers who ignore the role of social media in shaping workplace culture do so at their peril.

By updating policies, training leadership, and taking complaints seriously, employers can better navigate this evolving area of employment law—while also creating a respectful and harassment-free work environment for all.