Instagram Posts Support Sexual Harassment Claim

Takeaway: Employment law liability often depends on whether employee actions were taken within or outside the scope of employment. When a public employee’s social media postings blur that line, however, by harassing a co-worker and disparaging her to colleagues, the employer may be liable.

The 9th U.S. Circuit Court of Appeals overturned a federal district court decision dismissing a female public employee’s sex discrimination claim based on a male colleague’s Instagram posts. The court found that the posts, which were never addressed to, sent to, or shown to the plaintiff, nonetheless affected her workplace.

The plaintiff was a Special Housing Unit (SHU) staff psychologist for the Bureau of Prisons’ (BOP’s) Federal Correctional Complex Lompoc (Lompoc). In that position, she worked with custody staff to determine where inmates would be housed within the SHU so as to avoid conflict and violence. She relied on SHU custody officers to take inmates from their cells and transport them to their clinical appointments with her. She also conducted suicide risk assessments for the inmates.

A male corrections lieutenant also worked in the plaintiff’s department in the SHU. He investigated suspected violations of law and prison policy by inmates and staff. He was not her direct supervisor but was responsible for inmate and staff safety and oversaw the corrections officers working with her. In January 2020, the lieutenant had disagreements with her over how to best manage difficult inmates. He became frustrated that she was granted access to a SHU office that he believed made it impossible for him and his staff to do their job in the SHU.

At this time, the lieutenant created an anonymous Instagram page. In February 2020, the plaintiff became aware of the page when Instagram suggested that she follow it. The page contained hundreds of posts of overtly sexist, racist, antisemitic, homophobic, and transphobic memes that referred to the BOP, Lompoc staff, and Lompoc inmates. The page was followed by more than 100 Lompoc employees, including the HR manager and the union president. Approximately half of the page’s followers were Lompoc employees.

The plaintiff read posts on the page that were graphic, suggestive of rape and physical harassment, and depicted scenes of violence against women and against the plaintiff in particular. One post joked that the all-male custody officers would sexually assault her during a scheduled end-of-the-quarter celebration at her home. The post was “liked” by staff members, leading her to cancel the event.

The plaintiff sought to report the page to two men in management, the chief psychologist (her supervisor) and a safety manager. The safety manager replied on Instagram that the posts were funny and that she needed to toughen up or get a sense of humor. The chief psychologist suggested that she should transfer to a low-security facility, which she did, and directed the lieutenant’s supervisor to refer the matter to the BOP’s Office of Internal Affairs. When the safety manager found out, however, he posted on Instagram that the plaintiff was a “snowflake.”

When the plaintiff complained, the lieutenant’s supervisor admonished her that the posts were not a problem, and her supervisor told her to stop emailing about them, according to the plaintiff. The HR manager allegedly told her that the posts were funny and confirmed that the lieutenant ran the page.

Several weeks later, Lompoc hired a female warden who convened a team to investigate the complaints. The team directed the lieutenant to take down the page and told the plaintiff to stop viewing the page. Yet, the lieutenant continued to make threatening posts for three weeks before taking down the page. The plaintiff then transferred to a BOP facility in Texas.

The plaintiff filed a federal lawsuit claiming sex discrimination. The district court granted summary judgment to the government, finding that the posts did not occur in the physical workspace and that the BOP took prompt corrective action. The plaintiff appealed to the 9th Circuit.

On appeal, the 9th Circuit determined that the workplace was not limited to the physical environment of Lompoc, but also included outside conduct that affected the working environment. It found evidence that management-level employees and those charged with investigating workplace policy violations condoned, acquiesced to, or otherwise reinforced the misconduct. It thus reversed the district court’s decision and ordered the case to proceed to trial.

Okonowsky v. Garland, 9th Cir., No. 23-55404 (July 25, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.