In this episode of The Workplace podcast, CalChamber Associate General Counsel Matthew Roberts and Employment Law Subject Matter Expert Vanessa Greene examine two recent court cases — Bailey v. San Francisco District Attorney’s Office and Okonowsky v. Garland — that highlight complex incidences of workplace harassment, retaliation and social media.
Bailey v. San Francisco District Attorney’s Office
In Bailey v. San Francisco District Attorney’s Office, the California Supreme Court recently ruled that even a single incident of harassment may be actionable if it is sufficiently severe.
In Bailey, Twanda Bailey alleged that she was called the N-word by a colleague, Saras Larkin, at the San Francisco District Attorney’s Office. Because the colleague was close friends with the office’s personnel officer, Bailey was afraid to step forward regarding the incident. When Bailey’s supervisor eventually learned of the incident, a meeting was held with the personnel officer to discuss the incident. Larkin, who denied using the slur, was counseled on the city’s harassment policy and then nothing more was done, Greene explains.
Roberts points out that due to its historical context and how offensive the word is, the use of the N-word in the workplace should be a pretty big problem.
The City of San Francisco, however, came to the conclusion that because use of the N-word happened in only one incident, it wasn’t enough to create a hostile work environment, Greene says.
The California Supreme Court saw it differently. Contrary to the city and a lower court’s opinion, the Supreme Court ruled in favor of Bailey, pointing to the historical weight that makes the N-word so deeply harmful, especially in a small, shared workplace like the one in which Bailey worked.
In her lawsuit, Bailey also alleged she was retaliated against by the personnel officer, who chastised her for telling coworkers about her harassment incident, failed to file an official complaint of the harassment and made threatening gestures toward Bailey in the parking lot.
Roberts notes that this case demonstrates that retaliation isn’t limited to firing an employee; it can encompass any adverse employment action, like shunning and ostracization.
“Bailey’s case is really instructive on a couple points there for us. Obviously, the importance of a zero-tolerance policy, whether it’s severe or not, because, again, just one instance can be a problem there at the workplace. And then making sure retaliatory behavior in all of its forms is not occurring when somebody comes forward with a protected activity,” Roberts says.
Okonowsky v. Garland
Last month, the U.S. Court of Appeals for the Ninth Circuit ruled in Okonowsky v. Garland that an employer may be held liable for a hostile work environment claim based on harassing content posted on an employee’s personal social media account outside the workplace.
In Okonowsky v. Garland, Lindsay Okonowsky, a psychologist at a federal prison, alleged that she experienced a hostile work environment due to a series of sexually explicit and derogatory Instagram posts made by her colleague, corrections Lieutenant Steven Hellman. The posts, which targeted her and other women, were visible to numerous prison employees, including management.
When Okonowsky brought this to the attention of her superiors, including the human resources manager, she was told to “toughen up” and “get a sense of humor,” Greene says. Okonowsky’s complaint wasn’t taken seriously until months later when the prison got a new warden.
Roberts points out that like in Bailey, Okonowsky’s employers failed to conduct a proper investigation.
“We see this time and time again — employers really need to understand that there’s both legal and practical reasons why they need to investigate and take these things seriously. Legally, employers are required to investigate, but it’s not just about the legal checking of the box. Practically, it’s about getting to the facts so we can prevent future instances of harassment in our workplace, and if we don’t do that, we’re putting our employees at risk, and we’re potentially damaging our work environment,” Greene says.
In Okonowsky, the district court initially granted summary judgment in favor of the government, reasoning that because Hellman was using his personal social media account, workplace harassment rules did not apply.
The Ninth Circuit reversed the district court’s decision, stating that it’s not about when or where the conduct occurs, so much as who the audience is. And in this case, the audience included Okonowsky and her coworkers. Moreover, the conduct carried over into the workplace, making Okonowsky feel unsafe and uncomfortable to go to work because of the posts that were happening on Instagram, Greene explains.
CalChamber members can read more about these cases — including key employer takeaways — in Employee’s Harassing Instagram Posts Can Create a Hostile Work Environment and A Single Racial Slur Can Support a Harassment Claim Under FEHA on HRCalifornia. Not a member? Learn how to power your business with a CalChamber membership.
