I’m sure we all know that inappropriate conduct within the workplace can constitute sexual harassment – and New York’s Department of Labor is adamant about supporting workers – but what about behavior that occurs outside the office or outside work hours?
Recently, the Ninth Circuit Court of Appeals – a federal court in California – ruled on this question, rejecting the idea that outside behavior cannot, alone, support a Title VII claim against an employer. This decision reminds us about the many nuances that social media has brought to employment law and sexual and other harassment cases.
Gone are the days when only physical or in-person verbal harassment was sufficient to state a claim. Today, social media as well as other outside-of-work behavior can create a claim against an employer as a result of employee conduct.
Okonowsky v. Garland
In this Ninth Circuit case, a staff psychologist in a federal prison brought a claim against her employer, claiming that it failed to take adequate measures to address a hostile work environment. There, a prison corrections officer, her coworker, created an Instagram account to post sexually-hostile images targeting the plaintiff. The facts of this case are rather appalling, as the Instagram account poked fun at sexual assault and went so far as to suggest physical and sexual violence against the plaintiff and other female prison employees.
When the plaintiff brought the corrections officer’s Instagram account to the attention of her Human Resources manager and supervisors, she was told to “toughen up” and “get a sense of humor” because they thought the content was humorous. As a result, each time the plaintiff attempted to seek help from her superiors, she was ridiculed, and the hostile work environment worsened.
In the first instance, the federal district court found that the prison defendants were entitled to summary judgement because the conduct – that is, the Instagram account posts – occurred entirely outside of work. However, the Ninth Circuit Court of Appeals disagreed and reversed, concluding that having a physical workplace requirement is archaic given the nature of social media. The appeals court went on, stating that 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” because no matter where the posts were created, the Instagram account was followed by other prison employees who were free to engage with the content from any location – including in the workplace.
Where Do New York Federal Courts Stand on This Issue?
Of course, the Okonowsky case occurred in California, so it doesn’t have a direct effect on New York employers. The question then becomes whether New York has a similar stance on this issue, and if not, what does New York have to say about sexually-harassing conduct occurring outside the workplace?
Federal Law in New York. The District Court for the Western District of New York – which is the trial-level court in Western New York – has repeatedly concluded that although outside behaviors can be considered as part of the “totality of the circumstances” when assessing a hostile work environment claim, it cannot alone constitute a hostile work environment. The “totality of the circumstances” test means that the court is going to consider all of the available conduct of the case, rather than one single factor or action.
As a general rule, the Second Circuit Court of Appeals, which governs New York-based federal courts, doesn’t hold employers responsible under Title VII solely for “hostile sexual acts resulting from nonwork-related, off-duty interactions between coworkers.” This doesn’t mean that you can’t be held liable for ANY claims that include conduct that occurred outside the workplace. Rather, it simply means that an employee whose claim includes only outside-of-work actions likely won’t have a viable federal claim against her employee for a hostile work environment.
State Law in New York. New York’s Human Rights Law doesn’t explicitly detail whether an individual can rely on outside conduct in a hostile work environment claim. And there’s almost no caselaw regarding this issue that doesn’t rely on the old “severe or pervasive standard,” which is no longer a requirement under the law.
While the statute doesn’t explicitly provide an answer to this issue, the State Department of Labor certainly has taken a firm stance on the issue through its model policies and model training. Remember, this is the sexual harassment prevention training that must be done annually. In its model Sexual Harassment Prevention Training, the DOL admonishes employers that employee behaviors outside of work hours can impact the workplace and should be covered by employer sexual harassment prevention policies.
The New York City Ordinance. As you probably know, New York City has its own Human Rights ordinance that’s in addition to and separate from New York State’s Human Rights Law. Similar to the State Human Rights Law, New York City’s ordinance doesn’t directly address outside work behaviors. But that doesn’t mean they can’t be part of the totality of the circumstances – or all of the evidence – that a court might review in deciding whether sexual harassment took place.
What’s a New York Employer To Do?
Let these examples serve as a friendly reminder that you can’t immediately discount an employee’s complaint that they were harassed outside of work simply because the events occurred outside of work. If the complaint includes behavior that occurred both at work and outside the workplace, the outside work behaviors are going to be included in the complaint because courts and agencies (like the New York Division of Human Rights) look at all kinds of factors, not just one specific instance of conduct.
And, as we’ve discussed, the Division of Human Rights has been incredibly employee-friendly over the last number of years, and we can expect its stance in this regard will continue.
Of course, you always should be mindful of any complaint you receive from employees. No matter where the alleged conduct took place, take the complaint seriously and conduct a swift, objective, and thorough investigation.
If you need help with these or any other employment-related issues, reach out to us at info@coppolalegal.com or 716.839.9700. We’re here to help.
