Employers bear the responsibility of preventing and correcting harassment in the workplace. While the line between on and off duty conduct has never been crystal clear, in today’s hyper-connected world of social media, the boundaries are more blurred than ever before. The digital era in particular creates new challenges for employers when online conduct spills over into the workplace.

This article examines the legal landscape, for both federal and state law, that implicates employee’s social media conduct that occurs outside the office but nonetheless impacts the workplace. It will analyze the circumstances under which such conduct may impose a duty on employers to initiate a workplace investigation, particularly when the behavior has the potential to contribute to a hostile work environment or violate anti-harassment policies.

Fair Employment and Housing Act

California’s Fair Employment and Housing Act (FEHA) mandates that employers conduct prompt, thorough and impartial investigations when they become aware of allegations of harassment, discrimination or retaliation.

Under FEHA, conduct outside of the workplace could fall within the scope of an employer’s responsibilities to its employees when such conduct affects the working environment. Employees can claim a hostile work environment when they endure harassing and/or discriminatory behavior that is so pervasive or severe that it interferes with the employee’s ability to perform their job duties.

Recent Ninth Circuit Ruling: Okonowsky v. Garland

Last year, the Ninth Circuit issued a ruling on a significant matter concerning the circumstances under which online social media posts may be considered harassment. The court examined when such behavior becomes pervasive and severe enough to impede an employee’s ability to perform their duties effectively.

In Okonowsky v. Garland, a staff psychologist in a federal prison discovered that a correctional officer was operating an Instagram account with sexually offensive content that targeted her. After her employer failed to require the correctional officer to cease his conduct, she filed suit.

The District Court found that the Instagram posts “occurred entirely outside of the workplace” because “the posts were made on a staff member’s personal Instagram page and none of the five posts was ever sent to the Plaintiff, displayed in the workplace, shown to the Plaintiff in the workplace, or discussed with the Plaintiff in the workplace without her consent.” As a result, the District Court found that the posts “did not amount to severe or frequent harassment in the physical workplace…”

However, the Ninth Circuit disagreed, rejecting the notion that only conduct that occurs inside the physical workplace can be actionable. The court held that “social media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear” and that “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.”

Therefore, under Title VII of the Civil Rights Act, employers can be held liable for claims of a hostile work environment if an employee shares harassing content online, even when off the clock, that negatively affects the workplace.

EEOC Social Media Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) also released guidance on workplace harassment in April 2024. The guidance specifically refers to conduct that occurs in a non-work-related context but that impacts the workplace.

The guidance reads: “Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.”

The EEOC also noted that “conduct that can affect the terms and conditions of employment, even if it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.”

Employer Practice Points

The EEOC’s guidance, coupled with the Okonowsky decision, presents a timely opportunity for employers to reassess and update their workplace policies considering the increasingly remote and technology-integrated nature of modern society.

Employers should consider revising their anti-harassment and social media policies to explicitly address personal social media activity that may implicate the workplace. Specifically, such policies should make clear that personal social media posts shared with co-workers, which contain content that would violate the employer’s anti-discrimination or anti-harassment policies, are prohibited.

However, employers must also be aware that the First Amendment, the National Labor Relations Act, and general privacy principles limit an employer’s ability to police their employees off duty conduct. For example, California Labor Code 98(k) limits an employer’s ability to discipline employees for off-duty conduct. Thus, employers should be mindful that their revised policies and practices do not inhibit an employee’s rights.

Lastly, employers should implement clear procedures for investigating hostile work environment complaints arising from an employee’s personal social media conduct. Both legal and human resources teams should be cognizant of the risks posed by offensive employee social media posts and take sufficient action when notified of their impact on the workplace.

Employers Must Continue to Adapt

In conclusion, the intersection of social media and workplace conduct is one that employers must navigate with diligence and foresight. The Ninth Circuit’s decision and the EEOC’s updated guidance underscore the imperative for employers to proactively address the implications of online behavior. As technology continues to blur the lines between personal and professional spheres, it is crucial for employers to remain vigilant and adaptable in their approach to maintaining a harassment-free workplace. Importantly, when a complaint of harassment ─ via social media or otherwise ─ comes to light, employers must ensure a thorough, fair and timely investigation occurs.