Can an employer ignore harassment because it happened on a coworker's Instagram instead of at the office?

No. In a published opinion now binding across the Ninth Circuit, the Court of Appeals held that harassing social media posts by a coworker can contribute to a hostile work environment under Title VII even when the posts were made off-site and off the clock.

What Happened

Lindsay Okonowsky, a staff psychologist at the Federal Correctional Institution in Lompoc, Santa Barbara County, employed by the Federal Bureau of Prisons (U.S. Department of Justice — the Attorney General is the named defendant, which is why the case is captioned Okonowsky v. Garland). She discovered that a corrections lieutenant at the prison — a man whose job included overseeing the safety of staff and inmates — was running an Instagram account followed by more than a hundred of their coworkers.

The account contained hundreds of posts referencing the prison, its staff, and its inmates. A number of them targeted her by name or by unmistakable implication, including a post joking that the all-male custody officers would sexually assault her at her home. The Ninth Circuit described much of the content as too graphic and disturbing to reproduce in its opinion.

She reported the account to her supervisors. The posts continued after she complained — and some of them responded directly to the fact that she had complained.

What the Lower Court Did

The district court granted summary judgment for the employer. It reasoned that the Instagram posts "all occurred entirely outside of the workplace," and it excluded all but five of the posts from consideration on that basis.

That ruling reflected a view many employers had relied on for years: that conduct on a personal social media account, created off the clock and away from the job site, simply isn't the employer's problem.

What the Ninth Circuit Held

The Ninth Circuit reversed.

The Court rejected the contention that only conduct occurring inside the physical workplace can be actionable — noting, in its words, the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.

Three parts of the reasoning matter most:

The posts didn't stay outside. More than a hundred coworkers followed the account, including management-level personnel. Content aimed at a colleague and visible to the people she worked alongside every day does not stop at the parking lot.

Social media doesn't go away. The Court observed that posts are permanently and infinitely viewable by anyone with access, and that telling an employee to simply unfollow the account does not resolve anything. The harassment remains available, in perpetuity, to everyone she works with.

The employer's response is part of the claim. The relevant question is whether harassing conduct had an unreasonable effect on the working environment and, if so, how the employer responded once it knew. Evidence that management ratified or acquiesced in off-site conduct is particularly relevant. An ineffectual remedy is not a defense.

The case was remanded for further proceedings.

Why This Decision Matters

Okonowsky was the first federal appellate decision to squarely address harassment conducted through a personal social media account, and it is now controlling authority in the nine states of the Ninth Circuit.

It also aligns with EEOC enforcement guidance on harassment in the workplace, which recognizes that employers may be responsible for conduct outside work when it affects the working environment.

California law reaches the same place. Government Code section 12923 provides that the legal standard for sexual harassment does not vary by type of workplace, and California courts have since cited Okonowsky for the point that the analysis does not distinguish between conduct occurring on or off the physical or digital worksite.

The practical translation: off-site does not mean off the hook.

Frequently Asked Questions

Can my employer be liable for harassment that happens on social media?

Yes, in appropriate circumstances. Under Okonowsky, harassing posts on a coworker's personal account can contribute to a hostile work environment when they affect the working environment — particularly where coworkers and management can see them and the employer fails to act after learning about them.

Does it matter that the posts were made off the clock?

No, not by itself. The Ninth Circuit rejected the argument that conduct occurring outside the physical workplace is categorically outside a harassment claim. The question is the effect on the work environment, not the location where the conduct occurred.

What if I just block or unfollow the account?

The Court specifically addressed this. Blocking or unfollowing doesn't remove the posts or prevent coworkers from continuing to see them, so it isn't an answer to the harassment.

Do employers have to monitor employees' social media?

No. Okonowsky does not require employers to police personal accounts. The obligation arises once the employer knows about harassing content that is affecting the workplace and fails to respond adequately.

Does this apply in California state court?

The same principle applies under California law. Government Code section 12923 states that the harassment standard does not vary by workplace type, and California appellate courts have cited Okonowsky in applying that principle to conduct on and off the digital worksite.

Andrew S. Pletcher argued the appeal before the United States Court of Appeals for the Ninth Circuit.

Mr. Pletcher is the founder of Pletcher Law, APC in Westlake Village, California. He represents employees, injured people, and survivors of abuse throughout California, and handles appellate and law-and-motion matters for plaintiff-side firms statewide. He has three published appellate decisions and argued both Ninth Circuit appeals in the cases the United States Supreme Court consolidated as Our Lady of Guadalupe School v. Morrissey-Berru (2020).

Coverage

• Official opinion — U.S. Court of Appeals for the Ninth Circuit
• Bloomberg Law — "Online Harassment Ruling Provides Fodder for Future Enforcement" (subscription)
• Venable LLP — "Ninth Circuit to Employers: What Your Employees Say on Social Media May Haunt You"
• ArentFox Schiff — "Social Media Creating a Hostile Work Environment: What to Know Following Okonowsky v. Garland"
• Holland & Hart — "Online Conduct, Offline Impact"
• National Law Review — "Co-Worker's Social Media Posts Can Create Hostile Work Environment"
• KingSpry — "Off-Duty Social Media Use May Constitute Workplace Harassment"
• Farhang & Medcoff — "Ninth Circuit Holds That Workplace Harassment Can Occur Through Social Media Posts"

Are You Being Harassed Online by Someone You Work With?

Group chats, DMs, Instagram, posts your coworkers can see — if it's affecting your job and your employer knows about it and hasn't fixed it, that may be a claim. Screenshot everything, save it somewhere outside your work accounts, and report it in writing.

Book a free 15-minute case review · 805-630-3245

Free California workers' rights guide at employeesfriend.com

Prior results do not guarantee a similar outcome. This page describes a published appellate decision and is general information about the law, not legal advice. Attorney advertising — Pletcher Law, APC. Andrew S. Pletcher, State Bar No. 299437.