Employment Law Update
Federal Appeals Court Rules that Sexual Harassment May Occur on Social Media, Outside the Workplace and After Work Hours
Rejecting the notion that only conduct that occurs inside the physical workplace can be actionable, on July 25, 2024, the Ninth Circuit Court of Appeals held that sexual harassment may occur between coworkers online “in light of the ubiquity of social media and ready use of it to harass and bully both inside and outside of the physical workplace.” With apologies for the length of this summary, this case is fascinating. You should all read it! Here’s a hyperlink: Okonowsky v. Garland.
Lindsay Okonowsky worked as a psychologist in a federal prison. Her coworker, Steven Hellman created an Instagram page titled “8_and_hitthe_gate” (“Eight and Hit the Gate”) where he posted “overtly sexist, racist, anti-Semitic, homophobic, and transphobic memes” that expressly or impliedly referred to the prison or its employees and inmates. The court provided few specific examples of the posts, which it described as “too graphic and disturbing.” Nevertheless, Steven’s page was followed by more than 100 prison employees, including its HR manager Taulbee McGinnis. C’mon, Taulbee.
Instagram apparently thought Lindsay would enjoy this content, and it “suggested” that she follow the page. Thanks, Instagram. Lindsay took the recommendation and was shocked by the content. Linsay observed several posts that vaguely referred to her, the “psychologist,” including one post where Steven implied that he wanted to shoot Lindsay and an inmate. Other posts, not directed at Lindsay, were sexually graphic, suggestive of rape, and depicted scenes of violence against women. Lindsay reported this conduct to her supervisor and to the prison’s Acting Safety Manager, who had followed the page. Both were dismissive, with the acting safety manager responding that he found Steven’s content funny and that he was “Sorry, not sorry.” As apologies go, not a great one.
Within hours of her complaint, Steven doubled down with a post threatening Lindsay, “sexually debasing her,” and mocking her complaint with a meme reading, “Tomorrow’s forecast: hot enough to melt a snowflake.” If you’ll excuse the editorial, Steven really is the worst!
Lindsay escalated her concern to the Warden, who referred her to Special Investigative Agent Gonzalez. But Agent Gonzalez was not all that special—he reviewed Steven’s posts and told Lindsay that he didn’t “really see anything that’s a problem” with it. Making matters worse, when Lindsay spoke to the HR manager (a follower of Steven’s page), he also dismissed her, stating that he found the posts “funny.” (It is unclear what the HR manager believed was funny about the rape content).
Steven blocked Lindsay from viewing her page, but she continued to follow it under a fictitious name to monitor whether he had threatened her. And Steven continued to be gross on Instagram. He also ridiculed Lindsay in a post for thinking she’s “cute.”
Eventually, the prison instructed Steven to stop making his offensive posts. Steven simply ignored that instruction. The prison ignored its instruction, too, and took no further action. Lindsay transferred to a different prison and filed her lawsuit alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964.
The district court sided with the prison, concluding that all the conduct “occurred entirely outside of the workplace.” Lindsay appealed.
The Ninth Circuit reversed, sending the case back to the district court for trial (a jury that I suspect will super hate Steven). The Court held that “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.” The Court provided this explanation about how social media may affect an employee’s working environment:
“Social 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. No matter where [Steven] was or what he was doing when he made his posts, [coworkers] who followed the page were free to, and did, view, ‘like,’ comment, share, screenshot, print, and otherwise engage with or perceive his abuse posts from anywhere. The Instagram page also served as a record of which co-workers subscribed to the page and commented on posts, showed their comments and their ‘likes,’ and could be seen at any time or at any place—including from the workplace.”
Moral story to the story: Take all concerns about sexual harassment seriously, even if it appears the conduct took place outside the physical workplace.
What May Be Next for the DOL’s Increase to the Salary Threshold?
On April 23, 2024, the U.S. Department of Labor (DOL) issued its final rule increasing the salary thresholds for the Executive, Administrative, and Professional (EAP) Exemptions and the Highly Compensated Employee (HCE) Exemption under the Fair Labor Standards Act (FLSA). The first increase took effect on July 1, 2024, with the EAP threshold rising to $43,888 per year and the HCE threshold rising to $132,964. A second increase will take effect on Jan. 1, 2025, when the EAP threshold rises to $58,656 and HCE to $151,164.
A federal court blocked enforcement of the new salary thresholds from taking effect in Texas. The federal court could possibly expand the impact of its ruling to the rest of the nation. But, for now, the DOL’s salary threshold increases remain the law of the land outside of Texas.
The DOL has been sued before when it has raised the salary threshold for its EAP exemptions. The Trump administration enacted a modest increase to the EAP salary threshold, which resulted in a lawsuit challenging the DOL’s authority to impose any salary threshold at all onto the FLSA overtime exemptions. A federal trial court rejected the challenge, upholding the DOL’s authority to set EAP salary thresholds. An appeal was filed with the Fifth Circuit Court of Appeals. On Aug. 7, 2024, the Fifth Circuit held oral argument in that case. The plaintiff argued that the DOL lacks authority to enact any salary threshold because the FLSA only requires that employees be employed in a “bona fide executive, administrative, or professional capacity” and does not expressly allow or require a salary threshold. However, the FLSA gives the DOL authority for “defining and delimiting” the EAP exemptions. Thus, the central question on appeal is whether the DOL may impose a salary requirement to define and delimit the EAP exemptions. Legal commentators who observed the hearing noted that two of the three judges on the appellate panel pressed the DOL on its seemingly unfettered ability to enact salary thresholds. If the traditionally conservative Fifth Circuit rules that the DOL lacks authority to enact any salary threshold, such a ruling would negate the DOL’s more recent increases (within the Fifth Circuit) and set up a circuit split on the issue. If that happens, watch for the U.S. Supreme Court to resolve the divide!
Federal Court Permanently Enjoins Florida’s Stop WOKE Act.
Readers of these updates may recall Utah House Bill 111, Employment Training Amendments, that was proposed in the most recent Utah legislative session. In its initial draft, H.B. 111 would have made it unlawful for employers to require that employees submit to training about racial privilege, including perceived notions about “critical race theory.” The bill seems to have taken its inspiration from a similar law enacted in Florida called the Stope WOKE Act. H.B. 111 was amended to remove training prohibitions, and ultimately did not pass. Still, it appeared that bills like HB 111 could resurface in future legislative sessions.
However, a resurgence of similar legislation to limit employer training initiatives in Utah or elsewhere seems unlikely after a federal district court issued a permanent injunction against enforcement of Florida’s Stop WOKE Act. The order, dated Aug. 9, 2024, struck the Florida law down on the ground that it “violates free speech rights under the First and Fourteenth Amendments to the U.S. Constitution.” You’ll find more on this story here: Court rules Florida's 'stop woke' law restricting business diversity training is unconstitutional | AP News.
