On July 25, 2024, the United States Court of Appeals for the Ninth Circuit held that under Title VII of the Civil Rights Act of 1964 (“Title VII”) companies can be held liable for claims of hostile work environment if an employee posts harassing content online that negatively impacts the workplace. This decision is the first appeals court decision on an employee’s use of social media outside of the workplace since the Equal Employment Opportunity Commission’s issued updated guidance on sexual harassment on April 29, 2024.

In Okonowsky v. Merrick Garland, the Ninth Circuit overturned a trial court’s summary judgment in favor of the government in a sexual harassment case brought under Title VII. The action was brought by a female psychologist working at the Bureau of Prisons who pursued a claim for a hostile work environment based on a male supervisor’s Instagram posts. These posts depicted graphic images and statements suggesting violence against women, some of which appeared to specifically target the plaintiff. Despite reporting this derogatory content to her employer, the male supervisor continued to post even after being directed to stop in accordance with the prison’s anti-harassment policy.

The trial court granted summary judgment in favor of the prison, finding that the social media posts were “entirely out of the workplace” because they were made on a personal account and not shared or discussed in the workplace. However, the Ninth Circuit disagreed and found that online social media contact can constitute workplace harassment. The Ninth Circuit held that “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.” In furtherance of its decision, the Ninth Circuit emphasized that in a hostile work environment setting, the totality of the circumstances must be considered, rejecting any argument that only conduct within the physical workplace can be actionable under Title VII.

This ruling offers guidance for employers regarding the intersection of social media conduct and workplace harassment, forcing the employer to beware of how employees’ online and offsite behavior can impact workplace dynamics. Overall, this ruling broadens the scope of employment, as employers may be held accountable for employee actions on social media that affect the workplace. It also redefines the workplace, which now includes both physical and virtual environments. Employers should review their harassment policies to ensure they cover social media conduct and provide guidance on how to report such harassment, whether it occurs on or off workplace premises.