Social media posts from outside the office can foster a hostile work environment at work

Picking up where the EEOC left off earlier this year with its harassment guidance for employers that postings on a social media account targeting employees can contribute to a hostile work environment, the Ninth Circuit Court of Appeals recently reached the same conclusion in an opinion issued last week.

The case involved a staff psychologist in a federal prison who discovered that a co-worker responsible for overseeing the safety of guards, prison staff, and inmates in the unit where she worked operated an Instagram account. But this was no ordinary Instagram account. It was chock full of posts about sexually offensive content about work, some of which targeted her.

The Ninth Circuit exercised its discretion not to republish most of the offensive posts. However, it did recount one post that particularly disturbed the plaintiff: a co-worker joked that some all-male custody officers would “gang bang” the plaintiff at her home. Over one hundred prison employees followed the Instagram account, and many openly “liked” this post.

When the plaintiff complained about the page to prison leadership, the court noted that “management told her the page was ‘funny’; the investigator whom the prison appointed to investigate [the] complaint told her the page’s content was not a problem’; and the [co-worker] began to increasingly target her with his posts.”

Eventually, two months after the plaintiff first reported her co-worker’s behavior, the prison acknowledged that his Instagram activity violated the prison’s Anti-Harassment Policy and directed him to stop. Did he? No. Instead, the co-worker continued posting sexually hostile conduct for another month with no action by the prison. That was the final straw for the plaintiff, who, having endured the co-worker’s conduct and lackluster response from the prison, opted to leave in search of a different job.

And then she sued, alleging a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. The district court granted the government’s motion for summary judgment, partly because the Instagram posts were outside the physical workplace. But, the Ninth Circuit saw things differently:

“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. No matter where [the co-worker] was or what he was doing when he made his posts, [other] employees who followed the page were free to, and did, view, “like,” comment, share, screenshot, print, and otherwise engage with or perceive his abusive posts from anywhere. The Instagram page also served as a record of which co-workers subscribed to the page and commented on posts, showed their comments and their “likes,” and could be seen at any time from any place— including from the workplace.”

Here’s your takeaway, in the words of the Ninth Circuit:

“Reject the notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.”