Online Harassment Ruling Provides Fodder for Future Enforcement

The Equal Employment Opportunity Commission has a new legal framework to bolster its enforcement efforts against off-site, online harassment that creates a hostile work environment, thanks to a recent appeals court decision.

The ruling from the US Court of Appeals for the Ninth Circuit builds on the EEOC’s newly finalized harassment guidance, which says employers can be liable for off-duty conduct that occurs online or on social media if it affects someone’s work environment.

Both the decision and the guidance adapt workplace harassment law to the digital age as the boundaries between personal and professional environments blur with the growth of social media and communication technology.

Now, the Ninth Circuit has given the EEOC both a clear legal basis to start pursuing employers in court and for clarifying companies’ duties to prevent and address off-site online harassment, employment law scholars said.

“This is probably the most detailed discussion on the online harassment issue,” so the EEOC can base future enforcement actions on established case law rather than relying solely on “their best reading of the statute,” said David Lopez, a professor at Rutgers Law School and former EEOC general counsel.

That will lead to more authority and clarity to their guidance and decisions, he said.

The EEOC didn’t immediately respond to a request for comment.

A three-judge panel of the Ninth Circuit ruled last week that employers can be liable for hostile work environment claims arising from an employee sharing harassing content online that has negative consequences at work, including affecting another employee’s ability to perform their job.

Such harassment can trigger a sex bias claim under Title VII of the 1964 Civil Rights Act, regardless of whether the conduct occurred in the physical workplace or through online channels outside the office, the court said.

The ruling is an “important cautionary tale that employers have to be mindful of” and should “understand the court’s discussion on how workers’ online conduct can affect the quality of opportunity in the workplace,” Lopez said.

Covid’s Impact

The Covid-19 pandemic significantly changed the traditional workplace by shifting many employees to remote or hybrid work, heightening awareness of online harassment as digital communication became more central to daily work interactions.

About 35% of workers with jobs that can be done remotely are now working from home full-time, according to a recent report from the Pew Research Center. That figure marks a decrease from 43% in 2022 and 55% in 2020, but it is still significantly higher than the pre-pandemic level of just 7%, the report said.

Because there isn’t much case law on the issue of online harassment, attorneys believe that the Ninth Circuit’s reasoning gives the EEOC a basis to bring more legal actions and test the limits of enforcement in this increasingly prevalent area.

The ruling extended workplace protections for harassment victims by ensuring that employees are afforded the same treatment regardless of where harassment occurs, said Amy Epstein Gluck, a partner at Pierson Ferdinand LLP. It also puts employers on notice about the extent of their legal obligations, she said.

It gives the EEOC “a decent framework” to guide employers on circumstances that pose potential liability risks, she said.

For instance, a derogatory remark or conduct can give rise to a Title VII claim if it’s deemed sufficiently severe, even though such claims typically require a pattern of behavior that creates a hostile work environment, said Gluck, who chairs the firm’s employment, labor, and benefits department.

“We are going to see more of these issues crop up, especially in an election year” because the country’s polarized political climate often fuels workers’ emotional and contentious ideological expressions on social media, she said.

Clear Guidelines Needed

The Ninth Circuit revived a sexual harassment suit by federal prison staff psychologist Lindsay Okonowsky, who accused corrections lieutenant Steven Hellman of targeting her on his Instagram page.

The panel concluded that a district court’s order erroneously dismissed Okonowsky’s hostile work environment claim on the basis that the Instagram posts “all occurred entirely outside of the workplace.”

Drew Pletcher of Pletcher Law APC, who represented Okonowsky, told Bloomberg Law in a statement that the case is “one of the first at the circuit court level to deal with this issue,” and provides needed clarity on the legal implications of online-based harassment.

The US Justice Department, which represented the Federal Bureau of Prisons, didn’t reply to a request for comment.

Most employers already have workplace harassment policies, but employment attorneys say they should update them with clear guidelines that reflect the digital age and explain what constitutes harassment on social media.

Such policies also should be effectively enforced equally across the board and include remedial actions.

But employers also must be prepared to face questions from workers who believe their anti-harassment policies are chilling free speech, said Schwanda Rountree, a co-managing partner at Sanford Heisler Sharp LLP.

Social media is seen as a tool that allows individuals to express their views freely, “so there’s sort of a constant battle between having a voice and autonomy to be able to express views and opinions,” she said.

Unlike for public-sector workers, the First Amendment doesn’t apply in the corporate context.

Employers need not “monitor and audit all of their employees’ social media accounts, but when the conduct rises to the level of awareness, or it’s been brought to their attention, they really need to have protective and disciplinary measures in place,” Rountree said.

The case is Okonowsky v. Garland, 2024 BL 254680, 9th Cir., No. 23-55404, 7/25/24.