by Erika M. Barbara, J.D.; Senior Employment Law Counsel, CalChamber
Hostile work environment claims are the most common harassment claims employers receive. This type of harassment occurs when an employee experiences unwelcome or unwanted conduct or behavior — based on the employee's protected class — that is so severe or pervasive it alters the conditions of employment and creates a hostile work environment for the employee.
But what happens when the conduct occurs outside the workplace or on social media? How do you determine when conduct crosses the line? A recent Ninth Circuit Court of Appeals decision reaffirms that courts must consider the "totality of the circumstances" when analyzing whether a hostile work environment exists. It also held that offensive, retaliatory and intimidating conduct on an employee's personal Instagram page that was directed at the plaintiff could create a hostile work environment (Okonowsy v. Garland, No. 23-55404 (July 25, 2024).
In addition to confirming the legal standard for establishing a hostile work environment harassment claim, this case provides employers with examples of how not to handle harassment complaints.
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