Once upon a time, the employee’s workplace was entirely separate from their private life. No more. The two now bleed together, resulting in legal trouble for employers.
Male Manager Targets a Female Colleague
Lindsay Okonowsky worked as the sole staff psychologist at a federal prison on the West Coast. Lieutenant Steven Hellman supervised the prison guards in her unit.
Hellman created an Instagram account where he made numerous posts of a sexist, racist, anti-Semitic, homophobic, and transphobic nature. Many of his posts focused on Okonowsky, including one suggesting that the male guards “gang bang” her. Others degraded her appearance, mocked her for thinking of herself as “cute,” and criticized her job performance. A number of employees at the prison “liked” the posts.
Okonowsky complained. The alleged sampling of responses included the following:
- The HR manager, who followed the Instagram account, thought the posts were “funny.”
- The employee assigned to investigate Okonowsky’s complaint didn’t interview her because he “had other things going on” and “could not figure out how to print [the posts],” but he didn’t “really see anything that’s a problem.”
- The warden didn’t reply to her memos to him about the matter and, despite the violent and targeted nature of the posts, decided a formal threat assessment wasn’t warranted.
The prison told Hellman to stop. He did not stop. He continued to post sexist material containing sexually explicit language and suggesting sexual relations with or violence against female coworkers. Fearing for her safety, Okonowsky transferred to a federal prison in Texas. She sued under Title VII of the Civil Rights Act of 1964.
Appeals Court Rejects Prison’s Argument
The appeals court reversed the trial court’s decision to toss out the lawsuit.
First, it rejected the prison’s argument that the comments on Hellman’s Instagram did not “occur” at work and thus couldn’t be considered in deciding whether there was a hostile work environment at the prison. According to the appeals court:
[It] makes little sense to describe a social media page that includes overt comments about a specific workplace . . . as “occurring” in only a discrete location . . . Social media posts are permanently and infinitely viewable and re-viewable by any person with access to the page.
Second, even if some the comments did not pertain to Okonowsky directly—but other women generally—they all could “make it more difficult for her to do her job, to take pride in her work, and to desire to stay in her position.”
Third, the legal standard is not whether a reasonable person would find the comments objectionable but whether a “reasonable woman” would.
Now a jury will determine the merits of Okonowsky’s claim. Okonowsky v. Garland (9th Cir., July 25, 2024).
Bottom Line
I pause to note that this appears to have been an all-male work force. It matters not. There’s no assumption of the risk for a woman. There is no argument that “well, she knew what she was getting herself into.” This defense fails, as it should. There was a case in Denver where a woman sold cars at a car dealership. Her dealership colleagues called her “a floor whore,” which the dealership argued was justified because it was an industry term for car saleswomen. That type of argument will not fly in a court or with a jury.
And look, whether an employee thinks these comments are funny or harmless doesn’t matter. What matters is how a “reasonable woman” perceives them.
Finally, I recently reread a quote from the novelist Kurt Vonnegut that resonates: “Welcome to Earth. It’s hot in the summer and cold in the winter. It’s round and wet and crowded. At the outside, . . . you’ve got about a hundred years here. There’s only one rule that I know of, . . . ‘you’ve got to be kind.’” Kind to your coworkers. Kind to those who work for you. Kind to those who you dislike or are angry with for whatever reason. So, hold off on hitting the “like” button! Think twice about a thoughtless comment! Be the person you would admire.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@untdallas.edu.