08-22-2024
Lindsay Okonowsky worked as a staff psychologist in the Lompoc federal prison. Corrections Lieutenant Steven Hellman had an Instagram account that over one hundred fellow employees and upper-level prison management followed. While he did not include his name as the account owner, the posts clearly referred to events and people from the Lompoc prison. Okonowsky saw account posts that suggested violence against women in general and against the "psychologist." In particular, a post “joked” that the all-male custody officers would “gang bang” Okonowsky at her home during a party. After seeing this post openly “liked,” she canceled the party. She shared the images with her supervisor to complain. He told her the page was “funny” and that she should get a sense of humor. She complained to higher-level management. Afterward, a post appeared threatening her, sexually debasing her, and included a caption that said, “Tomorrow’s forecast: hot enough to melt a snowflake.” Okonowsky saw the post as menacing and forwarded it to the warden. An investigator contacted her and said he reviewed the page but didn’t “really see anything that’s a problem.” Hellman continued to post threatening and disturbing memes directed at her. The prison told the Lieutenant not to act in violation of the anti-harassment policy two months after her complaint. Hellman continued to post sexually offensive conduct for another month. Okonowsky left the prison to find another job.
She sued the Bureau of Prisons for failing to take reasonable steps to cure the hostile work environment. A federal district court granted the Bureau of Prison’s summary judgment motion because the social media posts were on a personal social media account "entirely outside of the workplace," and it was not shared or discussed with Okonosky at work.
The Ninth Circuit reversed that decision, holding that social media can constitute workplace harassment, "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." The court stated the permanent nature of social media posts that can be viewed and reviewed from anywhere makes them relevant if they affect an employee’s working environment. The circuit court's decision aligns with recent EEOC guidance stating employers may be liable for harassment over social media when it contributes to a hostile work environment.