This article was first published in the February 20, 2013 issue of Westlaw Journal Employment (Volume 27, Issue 15). Reprinted here with permission of Andrews Publications, a Thomson Reuters business © 2013.
Consider the following three scenarios:
Scenario one: Terrence worked as a flight attendant for Fly Right Airlines. While working, Terrence met Tina, a customer on a Fly Right flight. After the flight, Terrence took advantage of his access to Fly Right’s phone and computer systems and obtained Tina’s cellphone number. Over the course of two years, Terrence sent Tina more than 1,000 text messages asking her out on dates and making lewd comments about her body. Tina told Terrence to stop sending her text messages and contacted Fly Right on numerous occasions to complain about Terrence’s conduct. Tina asked Fly Right to take measures to prevent Terrence from contacting her, but the conduct continued.1
Scenario two: David and Donna worked together, and David gained access to Donna’s personal cellphone number. One night after work, David went out and had a few drinks. He texted Donna a series of messages about work, followed by several text messages containing sexual innuendos. David sent one text message containing a picture of female genitalia and other messages with pictures of men and women having sex, asking if she had tried any of these positions. On another occasion, David sent her a text message inviting her on a motorcycle ride, saying he wanted to see her "sexy a__" on the back of a motorcycle.2
Scenario three: Sean, who is black, reported to Steve, who is white. Sean and Steve had a great work relationship and often joked with one another. Steve began sending Sean text messages that included slang references to black people. Sean did not respond to the text messages. Several days later, Steve sent more text messages that contained jokes about blacks. Sean was extremely offended by the text messages.3
What do all of these scenarios have in common? They are all forms of harassment and have the potential to subject an employer to various statutory and common-law liabilities.
With the increased use of smartphones in the workplace, the traditional notion of quid pro quo sexual harassment has been expanded to include "text" harassment that takes place via social media and text message.
A recent study showed people are likely to be more candid over text message than they are in person, which means that, at some point, most employers will be confronted with the issue of text harassment.4
The above three scenarios show employer liability for harassment is not limited to what takes place between employees in the workplace. Harassment can also include off-duty conduct, as well as harassment from third parties such as customers or vendors. In such circumstances, employers can be liable under common-law claims such as negligent hiring or negligent supervision.
The important message for employers to take away, however, is that — no matter what form it takes — harassment is harassment, and the means of the harassing conduct doesn’t minimize the problem, nor should it change an employer’s response to the complaint.
Regardless of its form, sexual or racially derogatory communication from or among co-workers that is severe or pervasive is inappropriate and, if ignored, has the potential to subject employers to multimillion-dollar penalties.
In fact, in a recent case brought by the Equal Employment Opportunity Commission, Fry’s Electronics Inc. agreed to pay a $2.3 mil-lion fine to settle a sexual harassment claim stemming from the termination of an employee who complained that a manager was sending sexual text messages to an associate and inviting her to his house to drink alcohol.5
In that matter, the associate’s supervisor complained about the harassment and was fired. The company claimed that the termination was related to the supervisor’s performance, despite the fact that he maintained a commendable performance record. The EEOC filed a lawsuit on the employee’s behalf alleging sexual harassment and retaliation. In addition to the $2.3 million settlement, the parties entered into a consent degree that required Fry’s to take steps to prevent future harassment and retaliation. These steps included ongoing harassment and retaliation training of Fry’s employees and posting contact information for employees to report harassment, discrimination or retaliation.
While employers will never be able to fully insulate themselves from liability, they can take several steps to minimize risk and prevent text harassment.
Prohibit Personal Use of Employer-Issued Devices
Employers that issue smartphones, cellphones, PDAs or any other electronic message device should have a clear policy requiring that such devices be used for work purposes only. If an employer wishes to provide allowances for personal use of these devices, its policy should clearly define the types of acceptable personal use. In contrast, employers should also spell out conduct that is not permitted under personal usage policies, such as harassing text messages, vulgar language or explicit graphics.
Include All Forms of Electronic Messaging Devices
A sound electronic communications policy should clearly define all forms of electronic messaging devices an employer intends to monitor. For example, if an employer issues company cellphones, BlackBerrys and pagers and wishes to monitor an employee’s usage of each device, it should clearly list in the electronic communication policy each device it intends to monitor.
Employers that fail to do so and later read or review communications on these devices subject themselves to certain tort or constitutional violation claims.
This happened in a recent case that reached the U.S. Supreme Court.6 In that case, the employee sued his employer for reading personal text messages he sent using his employer-issued pager. The employer relied on a computer-use policy that permitted it to monitor communications; however, the policy did not expressly include the employer’s right to monitor text messages sent via pager. Note to employers: Be sure to include every type of device you intend to monitor.
Subject Smartphone Activity to Employment Policies
Since harassment can come in many forms and is not limited to an individual’s sex or gender, an effective smartphone policy should clearly state that any texting is subject to the employer’s harassment, discrimination or retaliation policies. Also, any employment policy should spell out what constitutes harassment or discrimination and include such conduct that occurs over text message or is otherwise transmitted using a smartphone.
Make Sure Policies Apply to Off-Duty Conduct
By now, most employers have policies that prohibit sexual harassment and discrimination in the workplace. But do these policies also prohibit harassing a co-worker after hours? Employers can be liable for harassment that takes place either during or outside work hours. As such, policies should state that any form of harassment among co-workers, whether the employees are on or off duty, violates company policy and will subject the employees to discipline. Employers should include the type of discipline that results from harassing conduct and state that termination may be appropriate.
Include Complaint Procedures
The employer’s smartphone and harassment policy should include complaint and reporting procedures for anyone who feels he or she has been subjected to harassing conduct. The policy should provide details instructing employees how and where to report harassment. The procedure should encourage prompt reporting and promise that the employer will investigate complaints in a prompt and thorough matter. Since the harasser is often an individual’s supervisor, the policy should identify at least one other person to whom the harassment should be reported. Finally, the policy should state clearly that individuals who report harassment shall not be subject to any form of retaliation.
A live training session also helps effectively communicate an employer’s harassment and discrimination policies. In fact, some states require mandatory harassment training. Employers should consult with local counsel on the harassment training requirements of their state and any state where they have a place of business. Employers in states that do not require training are advised to consult with local employment counsel to assist in the preparation and delivery of effective harassment training.
Get Signed Acknowledgement
Employers are advised to have employees sign and return forms acknowledging receipt of the company’s harassment and cellphone policies, review and understanding of the policies, and a commitment to comply. While general acknowledgement forms may be legally sufficient, those that communicate the understanding that the employer has the right to monitor and review messages sent from and to employer-issued electronic devices will help undercut any argument that an employee thought his or her messages were private.
Know What to do After Receiving a Complaint
As soon as the employer receives a complaint of text harassment it should promptly interview the complaining employee, the harasser and any potential witnesses who may have observed the conduct or have relevant information. Employers should request that the complaining employee provide a copy of the offensive text messages and either take steps to preserve the messages or instruct the employee not to delete them.
Upon completion of the investigation, if the employer concludes that harassing conduct is taking place, it should take prompt, remedial measures to stop the harassment. If possible, the employer should also take steps to prevent the occurrence of further harassment. For example, if the harassment took place over an employer-issued device, the employer may want to suspend or revoke the harasser’s use of the device. If the harassing conduct triggers disciplinary action, the employer should maintain a record that such action was taken. An employer should consult its disciplinary action policy to ensure such action is in accordance with policy standards.
The employer should meet with the complaining employee and discuss the results of the investigation. If the employee appears satisfied with the conclusions, the employer should have the employee sign a form acknowledging that an investigation took place and the employee’s complaints have been properly addressed.
It can be argued that as soon as an employer receives an internal complaint of text harassment, it is on notice of a potential lawsuit. With the rapid advancement of technology and electronic communication in the workplace, courts have emphasized the importance of preservation of electronic communications and information. Employers should make every effort to preserve or back up any text message at issue in the complaint. Employers should also preserve all communications pertaining to the alleged harassment, investigation and findings. In any event, when a complaint turns into a lawsuit, do not destroy evidence. In the EEOC lawsuit against Fry’s Electronics, the employer was subjected to court-ordered sanctions, including a penalty of $100,000, due in part to the destruction of relevant evidence.7
The popularity of text messaging has brought with it a new form of harassment. With a little fine-tuning of their harassment and smartphone policies, however, employers can continue to rely on the same steps to respond to, remedy and prevent harassment in the workplace. While there is no foolproof method to shield employers from sex harassment claims, the above recommendations can certainly help limit employer liability in text harassment cases.
1 Lansing v. Sw. Airlines Co., No. 1-10-1164, 2012 WL 2234354 (Ill. App. Ct., 1st Dist. June 8, 2012).
2 Kopman v. City of Centerville, 871 F. Supp. 2d 875 (D.S.D. 2012).
3 Griffin v. Harrisburg Prop. Servs., No. 08-1655, 2009 WL 4061229 (M.D. Pa. Nov. 23, 2009).
4 "Text Messages Make Us More Truthful," Huffington Post, May 19, 2012, available at http://%20www.huffingtonpost.com/2012/05/19/text-messages-truthful-_n_1527610.html.
5 Press Release, Equal Employment Opportunity Commission, Fry’s Electronics Pays $2.3 Million to Settle EEOC Sexual Harassment and Retaliation Lawsuit (Aug. 30, 2012).
6 City of Ontario v. Quon, 130 S. Ct. 2619 (2010).
7 See EEOC, supra note 5.