In the California case of Okonowsky v. Garland, a male supervisor in a federal prison (a lieutenant) used his private Instagram account to post sexually offensive content about a female prison psychologist. The District Court dismissed the psychologist’s hostile work environment claim, holding that the posts occurred entirely outside the workplace, were made on the lieutenant’s personal Instagram account, and were not sent or otherwise displayed to the psychologist. The Ninth Circuit reversed the dismissal of the Title VII claim and found that, in view of the generally permanent nature of the sexual posts and the references to the workplace on the Instagram account, the psychologist’s work environment could have been made hostile, especially since she had to interact with the lieutenant on a regular basis, and despite the fact that the lieutenant’s conduct occurred “off-site.”
In Bailey v. City of San Francisco, an African-American employee in the city’s district attorney’s office brought a hostile work environment claim on the basis of a co-worker’s having called her the “N-word” on one occasion. The trial court dismissed the case because of the absence of severe or pervasive conduct, and the Court of Appeal affirmed in light of the fact that the person using the offensive racial epithet was not a supervisor. The California Supreme Court reversed, and held that even a single use of the racial slur, even by a non-supervisor, may be sufficient to create a racially hostile work environment. (The result may be the same under the New York State and New York City Human Rights laws, both of which were amended several years ago to eliminate the “severe or pervasive standard” for workplace harassment claims.)
These decisions highlight the importance of anti-harassment training that makes clear to employees that conduct outside the workplace (including through the use of social media) can create an actionable hostile work environment, as can a single word, and that the employees engaging in this conduct may very well find themselves individual defendants in lawsuits.