Summarized from a report by CalChamber
Hostile work environment claims are the most common harassment claims employers receive. This type of harassment occurs when an employee experiences unwelcome or unwanted conduct or behavior — based on the employee’s protected class — that is so severe or pervasive it alters the conditions of employment and creates a hostile work environment for the employee.
Did you know that such conduct can occur outside the workplace or on social media? How do you determine when conduct crosses the line? A recent Ninth Circuit Court of Appeals decision reaffirms that courts must consider the “totality of the circumstances” when analyzing whether a hostile work environment exists. It also held that offensive, retaliatory and intimidating conduct on an employee’s personal Instagram page that was directed at the plaintiff could create a hostile work environment.
Too Graphic, Disturbing to Publish
The case involved an employee’s Instagram page that had posts specifically referencing a fellow employee, including images resembling her. Some posts suggested violence and sexual contact, as well as other female employees and women in general — even suggesting rape and depicting other violent scenes.
The court noted that "[m]ost of the posts are too graphic and disturbing to republish" but did describe one post that was particularly disturbing to one employee. In that post, which was "liked" by other employees, Instagram posts joked about male employees "gang banging" the victim employee during an upcoming work party scheduled at her home.
Numerous Complaints Were Largely Ignored
The victim employee complained to her immediate supervisor, who told her that the posts were "funny" and that she needed to toughen up or get a sense of humor. The victim employee then sent her complaint to the General Manager, who said he would assign someone to investigate the matter.
Shortly after making her initial complaints, an Instagram post appeared that threatened, intimidated and sexually debased the victim employee — and made it clear that someone had informed the harassing employee of the complaint. The post was sent to the General Manager, but he did not respond and later told the supervisor that she should stop emailing him with her concerns.
The Instagram posts continued — and appeared to intentionally target and intimidate the employee. The victim employee witnessed other employees discussing the Instagram page at work and complained to the Human Resources Manager — an active follower of the Instagram posts — who responded that he thought the posts were "funny."
The Court Case
The victim employee filed a lawsuit in federal court, alleging a claim for sex discrimination under Title VII of the Civil Rights Act of 1964. The district court granted the defendant's motion for summary judgment and dismissed the claim.
The court determined that the employee did not meet her burden of establishing the existence of a hostile work environment, the district court limited its consideration to just five Instagram posts that it determined had targeted the victim employee because of her sex. The court found that those posts occurred outside the workplace because they were made on an employee's personal Instagram page and had no connection to the workplace.
The case was appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit concluded that the lower court erred by limiting its analysis to only five Instagram posts and not considering the totality of the circumstances. After examining all the evidence in the record, the court concluded that the victim employee had met her burden, and it reversed the lower court's decision.
This holding reaffirms that courts must consider the totality of the circumstances when determining whether a hostile work environment exists, which means courts must examine factors such as:
- The frequency, severity and nature of the conduct at issue;
- Whether the conduct unreasonably interfered with work performance; and
- The conduct's cumulative effect on the victim.
Additionally, employees' and management's conduct also contributed to the hostile work environment, including employees' "liking.” and commenting on posts, and management endorsing and acquiescing to the harasser employee’s conduct by following and engaging with his Instagram page while largely ignoring the victim employee’s complaints.
Finally, the court found that a jury could reasonably conclude that the employer's response to the complaints was neither prompt nor effective. The employer's failure to "take reasonably prompt and effective steps to address conduct that violated numerous … policies signaled that the employer had no intention of protecting the victim employee from the harassing conduct and that harasser employee could act with immunity." In addition, a reasonable jury could conclude that the employer’s “lackluster response to the complaints 'reinforced rather than remediated' the harasser employee’s sexually harassing conduct, cementing the discriminatory effect of his behavior in the workplace."
Key Takeaways
- Always respond promptly to complaints of harassment.
- Train supervisors on their duty to report. Employers must ensure that supervisors who receive a complaint of harassment, discrimination or retaliation cannot ignore it — make sure they know to immediately report it to human resources so that it can be promptly investigated.
- Take all complaints seriously. Several management employees dismissed the complaints, saying the Instagram posts were "funny" or that she should "toughen up." Just as supervisors should not ignore complaints, they also need to be sure to take them seriously and not downplay a complaint when an employee brings it to them.
- Do not ignore offsite conduct. As this case so clearly demonstrates, harassing conduct that occurs outside the workplace can still create a hostile work environment. The key is not where the conduct occurs but the effect the conduct has on the workplace.
To learn more about social media harassment:
Pew Research Center https://www.pewresearch.org/internet/2021/01/13/the-state-of-online-harassment/
