Can a Co-Worker’s Social Media Post Create a “Hostile” Work Environment?

A recent lawsuit's hostile work environment claims hinged on the social media posts of a co-worker. The court was left to decide if a co-worker's social media activity can legally constitute a hostile workplace environment. The court's arguments led to much-needed clarity on the complex connection between workplace harassment and social media.

Case Details: Okonowsky v. Garland, United States Court of Appeals, Ninth Circuit, Case No.: 109 F.4th 1166 (9th Cir. 2024)

Federal Prison Psychologist Alleges Hostile Work Environment:

During her time employed as a federal prison psychologist, one of Lindsay Okonowsky's colleagues, corrections Lieutenant Steven Hellman, shared a series of sexually explicit and derogatory Instagram posts on his social media account, specifically denigrating his female coworker. Hellman made hundreds of derogatory social media posts denigrating women in general but specifically targeted his coworker, Okonowsky, including jokes about raping her. The negative Instagram posts were visible to other prison coworkers and some of the prison’s management personnel. The situation scared Okonowsky and made her uncomfortable going to work daily.

Seeking Resolution: Reporting Harassment to Management 

Okonowsky first sought a resolution of the situation by bringing the matter to the attention of her superiors at the federal prison, as well as the human resources manager. According to the lawsuit, instead of starting an investigation, she was advised to "toughen up" or "get a sense of humor." In fact, the hostile work environment claim wasn't taken seriously until months after the fact when a new warden took over at the federal prison.

Defining a Hostile Work Environment: Does Social Media Activity Apply?

The plaintiff argues that the string of derogatory social media posts constituted a hostile work environment and that her employers failed to properly investigate when she filed her complaint. Labor law requires employers to investigate complaints. However, in addition to fulfilling legal obligations, employers should investigate to ascertain the facts and prevent future instances of harassment or discrimination in the workplace. Failing to investigate leaves employees at risk of a potentially damaging work environment.

Okonowsky v. Garland: From District Court to Appellate Court

Initially, the district court granted summary judgment in favor of the defendant because Hellman, Okonowsky's colleague at the prison, was using his personal social media account, which they defined as outside of the workplace. The district court found that Hellman's online activity didn't fit the requirements needed to qualify as harassment under Title VII because the posts occurred outside of the workplace, were not directly sent to Okonowsky, and were not shown to her in the workplace. Using this definition, the court found that workplace harassment rules did not apply. However, on appeal, the district court's decision was reversed. The Ninth Circuit court clarified that it's not about when or where the conduct occurs but about the audience. And in the case of Okonowsky v. Garland, the audience included Okonowsky, the plaintiff, and her coworkers (including management personnel). In addition, the behavior overflowed into the workplace, which left Okonowsky feeling unsafe at work and uncomfortable going to work because of the series of Instagram posts. In a unanimous decision, the 9th Circuit panel held that Hellman's Instagram posts denigrating his female coworker could qualify as unlawful harassment. The court's rejection of the notion that only conduct occurring in the physical workplace can be actionable was firm - noting the ready use of social media to harass and bully both inside and outside the "workplace."

If you have questions about filing a California hostile work environment lawsuit, please contact Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Knowledgeable employment law attorneys are ready to assist you in various law firm offices in Riverside, San Francisco, Sacramento, San Diego, Los Angeles, and Chicago.

Can One Racist Slur Create a Hostile Work Environment in California?

In another landmark decision, the California Supreme Court recently clarified that under California's Fair Employment and Housing Act (FEHA), even a single instance of a racial slur (like the n-word) can create a hostile work environment. This ruling only increases the employers' responsibility to prevent and address workplace harassment.

Case Details:

Bailey v. San Francisco District Attorney's Office

Supreme Court of California

Case No.: 16 Cal. 5th 611 (2024)

The Harassment and Retaliation Claims of Twanda Bailey

According to Twanda Bailey, a Black employee at the San Francisco District Attorney's Office, a colleague used the n-word in a conversation with her. After reporting this, Bailey alleges the District Attorney's Office HR manager blocked her formal complaint, intimidated her, and threatened her with retaliation, stating Bailey was "going to get it." Bailey's lawsuit claims she faced both racial harassment from a coworker and retaliation from HR for reporting it.

The Defendant: Bailey v. San Francisco District Attorney's Office

The defendants in the case are the San Francisco District Attorney's Office, former District Attorney George Gascón, and the City and County of San Francisco. The defendants acknowledged that a meeting between Bailey and her colleague, Saras Larkin, took place. However, Larkin denied using the racial slur. Although Larkin denied using the n-word, the city reminded her of its harassment policy. The city then determined that a single instance of alleged misconduct, even if true, did not meet the legal standard for a hostile work environment under FEHA. A known close relationship between Larkin and the personnel officer handling the situation raises questions, though the city claims an investigation was undertaken.

The Allegations: Bailey v. San Francisco District Attorney's Office

According to the lawsuit, Twanda Bailey claims the DA's Office violated FEHA (California's Fair Employment and Housing Act). She claims:

Racial Harassment: Bailey alleges she was subjected to racial abuse when a coworker called her the n-word.

Workplace Retaliation: After reporting her co-worker's racist language, Bailey claims the human resources manager took a series of retaliatory actions. First, she allegedly blocked Bailey's complaint, then engaged in intimidation and threats. Bailey claims the retaliation stopped her from pursuing a resolution for the original harassment claim.

Case History: Bailey v. San Francisco District Attorney's Office

Trial Court (Superior Court of San Francisco City and County): Granted summary judgment in favor of the City and County of San Francisco. The trial court found that a co-worker's single use of the n-word wasn't "severe or pervasive" enough to create a hostile work environment. They also found that Bailey had not offered sufficient proof that she suffered an adverse employment action.

Court of Appeal: Affirmed the trial court's decision.

Supreme Court of California: Reversed the Court of Appeals’ judgment. The Supreme Court held that:

• A single, severe instance of a racial slur can create a hostile work environment, depending on the totality of the circumstances.

• The severity of harassment must be judged from the perspective of a reasonable person in the plaintiff's position.

• Actions that effectively block an employee's ability to report and address harassment (like the alleged obstruction by HR) can constitute an adverse employment action.

There were genuine disputes of material fact regarding both the harassment and retaliation claims, requiring a trial.

Bailey v. San Francisco District Attorney's Office: Why It Matters?

The California Supreme Court's decision is a reminder that even an isolated incident of racial language can result in severe legal consequences. The court broadened the scope of potential employer liability under FEHA, emphasizing the "totality of circumstances" and the perspective of a "reasonable person" in the plaintiff's position. Additionally, the court's ruling shows that hindering a worker's ability to report instances of harassment can be defined as retaliation. Employers should take all racial harassment reports seriously and conduct thorough and impartial investigations followed by appropriate corrective action to avoid recurrences. Failing ot do so could mean significant consequences (financial penalties, damaged reputation, litigation, etc.)

Do you need to file a California harassment lawsuit? Let the knowledgeable employment law attorneys at Blumenthal Nordrehaug Bhowmik DeBlouw LLP help. We're ready to assist you in any of our various law firm offices in Riverside, San Francisco, Sacramento, San Diego, Los Angeles, and Chicago.

Female Workers at California Winery Claim Employer Allowed Sexual Harassment

Women at a California winery claim they were sexually harassed daily on the job, and the company failed to investigate their complaints.

The Case: EEOC v. Justin Vineyards & Winery LLC, et al.

The Court: U.S. District Court for the Central District of California

The Case No.: 2:22-cv-06039

The Plaintiff: EEOC v. Justin Vineyards & Winery

The plaintiff alleges that the defendant violated federal law by allegedly allowing a class of female employees to be subjected to sexual harassment. According to court documents, the harassment began as early as 2017. Male managers at Justin Vineyards & Winery LLC’s production and restaurant locations in Paso Robles, California were allegedly allowed to sexually harass female employees daily. The sexual harassment was described as widely varied, including unwanted, repeated sexual advances, sexual comments, general sexually offensive conduct, and even unwelcome physical contact. The women allegedly complained to Justin Vineyards & Winery LLC and The Wonderful Company LLC about the situation. Still, they claim the company did not attempt to properly investigate the complaints or take any appropriate steps to stop the ongoing sexual harassment. After complaining of sexual harassment, some female employees claim they faced workplace retaliation or were forced out of their jobs.

The Defendant: EEOC v. Justin Vineyards & Winery

The defendants in the case are Justin Vineyards & Winery, a wine production company headquartered in Paso Robles, California, and its parent company, The Wonderful Company LLC, headquartered in LA.

Details of the Case: EEOC v. Justin Vineyards & Winery

The court documents for the case, EEOC v. Justin Vineyards & Winery, allege actions violating Title VII of the Civil Rights Act of 1964 that prohibits a hostile environment based on sex (including sexual harassment), as well as retaliation against anyone who complains about sexual harassment. After pre-litigation settlement negotiations failed, the lawsuit was filed in the U.S. District Court for the Central District of California. The suit seeks monetary damages for the claimants, including compensatory and punitive damages, and injunctive relief against the company to prevent similar unlawful conduct against employees.

If you have questions about how to file a California employment law complaint, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Lowe’s Settles Sexual Harassment Claims with $700,000 Settlement

In recent news, Lowe's settled sexual harassment claims spanning a decade with a $700,000 settlement.

The Case: EEOC v. Lowe's

The Court: U.S. District Court for the District of Arizona

The Case No.: Case No. 22-08152-PCT-SPL

The Plaintiff: EEOC v. Lowe's

The plaintiffs in the case claim that Lowe's allowed sexual harassment of female employees at their Lake Havasu City location for approximately ten years in violation of Title VII of the Civil Rights Act of 1964. After a year's worth of attempts to reach a prelitigation settlement failed, the sexual harassment lawsuit was filed in U.S. District Court for the District of Arizona on August 30th, 2022. The three women who filed suit allege more than a decade of "open, notorious, and frequent" sexual harassment and abuse by a male co-worker at Lowe's.

The Defendant: EEOC v. Lowe's

The defendant in the case, Lowe's, is a nationwide hardware and home improvement giant based out of Mooresville, North Carolina. One of the three women who filed the lawsuit alleging sexual harassment at Lowe's stated that she asked the male co-worker to stop and reported the harassment to her supervisors for ten years. After ten years, the 59-year-old Lowe's customer service employee filed a grievance through Lowe's telephone hotline in 2018. After reporting the on-the-job harassment, the woman went on short-term disability. According to court documents, she could no longer handle the stress and anxiety caused by the daily sexual harassment at work. In response, Lowe's allegedly forced the woman to choose between returning to the office with the same people who harassed her (or failed to protect her from harassment for a decade) or quitting her job.

Details of the Case: EEOC v. Lowe's

The defendant settled the lawsuit on September 16th, 2022. Lowe's will pay the $700,000 settlement and provide other relief to settle the sexual harassment discrimination lawsuit. The additional relief specified in the three-year consent decree required the Lowe's Lake Havasu City location to:

•Revise anti-discrimination policies

•Respond to sexual harassment complaints promptly

•Conduct thorough investigations of any complaints of sexual harassment

•Provide employee training on sexual harassment

•Offer the three women who filed the sexual harassment lawsuit letters of reference

• Provide reports on their revised training, future complaints of discrimination, and revisions to Lowe's policies or procedures to the EEOC

If you have questions about how to file a California sexual harassment lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Former Tinder Brand Manager Alleging Sexual Harassment Must Adhere to Arbitration Agreement

A former Tinder Brand Manager took her sexual harassment case to the Ninth Circuit arguing the arbitration agreement did not apply as the incidents predated the agreement. The court found the arbitration agreement enforceable based on broad language.

The Case: Elizabeth Sanfilippo v. Match Group LLC et al.

The Court: US Court of Appeals for the Ninth Circuit

The Case No.: 20-55819

The Plaintiff: Elizabeth Sanfilippo

Elizabeth Sanfilippo, the plaintiff in the case, was hired by Tinder in September 2016 as a brand manager. According to the complaint, the plaintiff complained to human resources at her employment in mid-2017 and January 2018 stating that she was being subjected to sexual harassment at the hands of her Tinder coworkers and supervisors.

The Defendant: Match Group LLC et al.

During the same time period when Sanfilippo submitted sexual harassment complaints to the Tinder human resources department, the company was acquired by Match Group, Inc. (in July 2017). After Match Group acquired Tinder, they sent out a mandatory arbitration agreement to the employees. The plaintiff, Elizabeth Sanfilippo, signed the agreement and continued working for Match Group until March 2018 when Match Group terminated her employment.

Summary of the Case: Elizabeth Sanfilippo v. Match Group LLC et al.

Sanfilippo sued in California state court claiming sexual harassment and retaliation. The case was removed to federal court where Match Group successfully moved to compel arbitration. On appeal, the plaintiff argued that the arbitration agreement was unenforceable, and did not cover her claims (which predated the arbitration agreement with Match Group). However, the Ninth Circuit held the arbitration agreement enforceable and applicable to the allegations (even though the plaintiff didn’t sign the arbitration agreement until after the claims occurred).

More Details on the Case: Elizabeth Sanfilippo v. Match Group LLC et al.

The court noted the arbitration agreement’s broad language applying the arbitration requirement to “all claims and controversies arising from or in connection with [the employee’s] application with, employment with, or termination from the Company.” Since the arbitration agreement referenced “all claims and controversies,” the court found that the plaintiff’s claims that predated the arbitration agreement were included. The Ninth Circuit was also not swayed when the plaintiff argued that the arbitration agreement included a provision allowing the employer to modify the terms unilaterally. The court did recognize that this provision could be unconscionable. However, since Match Group did not attempt to modify the agreement and were instead attempting to enforce the agreement as is, the court found that while the provision itself could be found unconscionable, its existence did not render the entire arbitration agreement unenforceable. Accordingly, the Ninth Circuit Court of Appeals ruled that the plaintiff, ex-Tinder employee, Sanfilippo, must arbitrate her claims against her former employer.

If you have questions about California employment law or if you need help with an arbitration agreement, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Court Denied the Defendant’s Motion for Partial Summary Judgment in Harassment Suit

In recent news, The Northern District of California court denied the defendant’s motion for partial summary judgment in Katheryn Moses v. Aerotek, Inc.

The Case: Katheryn Moses v. Aerotek, Inc.

The Court: United States District Court Northern District of California San Jose Division

The Case No.: 17-cv-06251-BLF

The Plaintiff: Katheryn Moses v. Aerotek, Inc.

The plaintiff in the case is Katheryn Moses. Aerotek, the defendant, hired Moses in September 2014 as a recruiter in their San Jose office, and was promoted to Account Manager about one year later. In December 2016, Moses reached a benchmark at the company that earned her a company trip to Cancun, Mexico in January or February of 2017. Prior to taking the trip, Moses was terminated from her employment on Jan. 25, 2017. After her termination, Moses filed suit alleging retaliation, failure to prevent retaliation, failure to prevent harassment (violating FEHA), and failure to provide records (violating California’s Labor Code). Moses claims she was terminated in retaliation for reporting inappropriate conduct of a senior manager, Onyeka Ossai, who she had a sexual relationship with during her time employed at the company. He was also part of the interview panel when she received her promotion to Account Manager. Ossai denies that the two were in a relationship, claiming they had only one encounter in 2015.

The Defendant: Katheryn Moses v. Aerotek, Inc.

The defendant in the case, Aerotek, a staffing company, claims that Moses was fired for performance issues, including interviewing with other companies during work hours. In response to their former employee’s lawsuit, the defendant, Aerotek, Inc. filed a motion seeking partial summary judgment in regard to Moses’ FEHA claims as well as her claim for punitive damages.

More About the Case: Katheryn Moses v. Aerotek, Inc.

According to court documents, the difficulties between Moses and Ossai escalated to a confrontation at a company event at which Moses claims Ossai pushed her. After this incident, Moses called an Aerotek supervisor, Lane, to report that there had been an inappropriate relationship and that Ossai had put his hands on her. Lane advised Moses to skip work the next day and since she was already scheduled for time off for the holidays, she didn’t need to return to work until January 2017. Lane reached out to Ossai, who denied pushing Moses. When all three returned to work in January 2017, Lane urged Moses to sit down and work it out with Ossai, but she refused. Moses then suggested that Lane contact Aerotek’s Human Resources Manager, Shelia Simmons, which he did.

An Official Investigation Begins: Katheryn Moses v. Aerotek, Inc.

On January 19, 2017, Simmons opened a formal investigation and notified the company’s Regional VP, Eric Bowen. Bowen reprimanded Lane for his mishandling of the complaint and warned him that a future failure to report workplace issues could mean he’d lose his job. Simmons’ notes on the investigation indicate that she conducted interviews with Moses, and 8 others, but that much of the investigation focused on Moses’ behavior outside of and unrelated to the reported incident. Simmons’ notes do not reflect that she interviewed Ossai. However, she does testify that she spoke with him to ask if he put his hands on Moses, and that when she asked about his relationship with Moses, he was evasive. On January 20, 2017, Moses was presented with a disciplinary write up. Moses claims that when Lane presented her with the form, he was angry and made it clear she had put Ossai’s career at risk. Moses was terminated on January 25, 2017. Moses filed a DFEH complaint on June 2nd, 2017 followed by the present action in the Santa Clara County Superior Court on September 1st, 2017. The defendant removed the action to federal court October 27, 2017.

Defendant Seeks Partial Summary Judgment: Katheryn Moses v. Aerotek, Inc.

Most recently, the defendant filed a motion for partial summary judgment. Based on the lack of documentation regarding Moses’s alleged performance difficulties in 2016, her obvious job success in 2016 (she won a contest in Dec. 2016), Lane’s admission that he had never terminated other employees for interview-related activities, evidence that Lane was angry Moses’ actions could jeopardize Ossai’s career, and the small window of time between Moses’ reporting of the incident, and her termination, the court finds that the evidence seems to suggest retaliatory intent. Aerotek’s motion for partial summary judgment was denied based on these facts.

If you have questions about California labor law violations or need to file a hostile work environment or retaliation complaint, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Health Care Services & Staffing Agency Accused of Fostering Racially Charged Hostile Work Environment

In recent news, did Cardinal Health and Howroyd-Wright Employment Agency foster a racially charged, hostile workplace?

The Case: EEOC v. Cardinal Health and Howroyd-Wright Employment Agency dba AppleOne Employment Services

The Court: U.S. District Court for the Central District of California

The Case No.: 5:19-cv-00941

The Plaintiff: EEOC v. Cardinal Health

The retaliation discrimination lawsuit was filed by the U.S. Equal Employ­ment Opportunity Commission. According to the complaint filed in the U.S. District Court for the Central District of California, African American workers employed by Cardinal Health or assigned to work at the Cardinal Health location under the AppleOne staffing agency, endured unwelcome (and ongoing) racial harassment. When employees complained about the hostile work environment and racial harassment, neither Cardinal Health or AppleOne took appropriate, timely corrective action. Additional allegations were made that employees that complained about the situation experienced retaliation, discipline, and termination. In addition, some employees felt they had no choice but to quit due to the hostile environment and lack of response to complaints regarding the situation.

The Defendant: EEOC v. Cardinal Health

The defendant in the case, Cardinal Health, is a global health care services and products company providing solutions for hospitals, health systems, medical offices, pharmacies, and ambulatory surgery centers

The Case: EEOC v. Cardinal Health

The defendant in the case, Cardinal Health, agreed to pay $1.45 million to resolve the racial harassment and retaliation discrimination lawsuit. Both Cardinal Health, and the California-based staffing agency, AppleOne, agreed to implement sweeping injunctive relief as a term of the settlement. The injunctive relief is designed to prevent future instances of workplace harassment, discrimination and workplace retaliation. Some of the specific terms of the agreement have the defendants retaining an equal employment opportunity (EEO) monitor, conducting regular audits, reviewing and revising policies to prohibit and prevent discrimination, and distributing the policies to both temporary and permanent employees. The defendants will also develop and institute an internal complaint management process.Additionally, the defendants agreed to maintain a toll-free complaint hotline and offer discrimination training for employees.

If you have questions regarding employment law and how it protects California employees from discrimation, get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.