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The Ninth Circuit disagreed with the trial court and found that online social media content can constitute workplace harassment. The court rejected the notion that “only conduct that occurs inside the physical workplace can be actionable, 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 further warned that “[s]ocial media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear” and that “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.”  The Ninth Circuit sent the case back to the trial court.

This is a classic case of bad facts make bad law. The number of posts, the graphic and patently offensive content, the number of followers from the workplace, the specific references to the workplace and to individuals (at least by position), and management’s laissez-faire response all combined to render the Ninth Circuit’s conclusion in this case predictable.  Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.

For me, the unanswered question in this case is whether the Lieutenant who started the account was ever disciplined. It is worth noting that this guy was a member of the Bureau’s Special Investigative Services unit, responsible for investigating suspected violations of law and prison policy by both inmates and staff. The title of his account is 8_and_hitthe-gate.  Apparently “eight and hit the gate” is a well-known expression among prison employees for putting in your time on your shift and getting the heck out.  How about the management staff who did nothing? The facts of this case arose back in 2020 and the case has just been remanded to the District Court. Sounds like it’s ripe for mediation. 

What do you think of this case?  Do you agree with the appellate court or was Judge Phillips correct in her narrow interpretation of what constitutes workplace harassment? Let me know!