Generally, employers are not responsible for events involving their employees that happen after hours and away from work. But that is not always the case. In its April 2024 Enforcement Guidance on Harassment in the Workplace, the Equal Employment Opportunity Commission detailed how actions away from the workplace can result in harassment liability for the employer, if the conduct has consequences in the workplace. The EEOC’s Guidance includes a number of categories as examples:
Conduct That Occurs in Work-Related Context
Outside of Regular Place of Work
This category is fairly obvious. It includes instances when harassing conduct or behavior occurs away from an employee’s regular workplace and perhaps outside regular hours of work but happens “within the work environment.” Off-site training, business dinners, company parties, or employer-sponsored sporting events are common examples.
Conduct That Occurs in a Non-Work-Related Context,
But with Impact on the Workplace
This category is trickier. Here, the key is whether — although happening after work hours, away from work, and unrelated to work — the harassing behavior causes or contributes to a hostile environment in the workplace. This can happen through after-hours face-to-face interactions between employees or through electronic communication or social media. According to the EEOC, if an employer is aware of after-hours social media that is harassing and targets an employe but fails to take appropriate action, the employer may be liable. Risk of potential liability for the employer increases if the harasser has made a point of sharing their hostile communication with other employees or if the after-hours social media harasser is a supervisor. In both cases, the EEOC reasons it is likely to contribute to a hostile work environment.
A recent federal appeals court decision tracks the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace. In Okonowsky v. Garland, a correctional officer used his personal Instagram account to post sexually offensive statements about the prison’s female staff psychologist, Lindsay Okonowsky. Although the posts occurred outside of the workplace and were never sent to Okonowsky, they were shared with co-workers. The prison was aware of the posts but took no action. Under these facts, the court found Okonowsky could pursue a harassment lawsuit against her employer, the prison.
Where this leaves us
Update your harassment and discrimination policies so it is clear that off-site, after-hours conduct that is harassing or discriminatory is likewise prohibited. Don’t assume off-site, after-hours behavior or events are not your problem. If the conduct targets an employee and impacts the workplace, you need to treat it like any other potential harassment claim.
- Okonowsky v. Garland, 23-55404 (9th Cir. 7/25/24)
