By: Ryan L. Young, Esq.
Text messaging has come a long way. With an estimated one trillion text messages being sent in 2008, text messaging, the process of sending a text message from one person to another via cellular telephone, is an increasingly popular communication medium. While text messaging was once a practice dominated by the teenage consumer, it is becoming more and more commonplace amongst adults. In fact, I find my own fingers feverishly typing text messages to friends and loved ones when I get a moment of down time. Additionally, this technological innovation improves the way we conduct business by making it possible to contact our employees, business partners, and other entities instantaneously. Despite the many benefits associated with text messaging, employers need to be aware of one significant drawback - the use of text messages as evidence of sexual harassment. Due to its increasing prevalence, text messaging may challenge email, long-time leader of the technological hysteria, as the number one smoking gun. Beware employers: we are entering the age of textual harassment.
The problem presented by textual harassment originates from the sense of privacy many people feel text messaging provides. This sense of privacy stems from the characteristics of text messages, particularly, the message is not on paper and can be deleted by the press of a button. It is easy to overlook the fact that while the message has been deleted from your phone, it can still be found on the recipient's phone, creating a digital paper trail. This mistaken belief of privacy causes many people to lower their guard when using text messages to communicate with each other.
This potential problem extends to the employment context where many employees believe that text messages, as well as other forms of digital communication, are private. In turn, the mistaken belief of privacy can lead employees, both supervisors and subordinates, to send text messages that are inappropriate. Unfortunately for employers, it has become more popular for employees to use these inappropriate text messages as evidence of sexual harassment. For instance, this past spring two female soccer players used inappropriate text messages from their coach to secure a $450,000.00 settlement from Central Michigan University before filing their sexual harassment claims in federal court. The World Wrestling Entertainment, Inc. could have a similar problem on its hands. A former licensing coordinator for the wrestling company filed a claim alleging she was sexually harassed by a married supervisor. According to the former employee, the supervisor allegedly harassed her with intimate, late night text messages and phone calls. Textual harassment is not foreign to the government employers. In June of this year, a Cicero, Illinois, municipal employee filed a sexual harassment claim in federal court against the town president alleging he sent her lewd and sexually explicit text messages. The municipal employee's attorney is in the process of retrieving the text messages the town president sent to his client in preparation for trial.
Another wrinkle in this issue is the use of a private versus a company-issued phone. Employers need to note that their liability is not limited to the employee's use of a company-issued phone. Many employers mistakenly believe that if someone in their employ sends another employee something from their private electronic device in the privacy of their own home, then the employer is protected from a sexual harassment lawsuit. The cold, hard truth is that even messages sent from an employee's private phone and in the privacy of their own home can be used against the employer.
Adding further to the problem is the ease at which digital communications are misunderstood. The lack of nonverbal cues and even the timing of messages can lead to miscommunication. For instance, imagine you are in the office and you notice one of the employees is wearing a very nice article of clothing. You casually say, "Hey, that's a nice (insert article of clothing)." Most likely, the employee would graciously accept the compliment. Now imagine you are at home and late into the night you send the employee a text message stating, "Hey, I really liked that (insert article of clothing) you were wearing today." This awkward message could provide the employee with damaging evidence if they decided to file a charge of sexual harassment.
Naturally, this leads to a discussion regarding what an employer can do to address the textual harassment problem. Employers can prevent the pitfalls of textual harassment by following these guidelines:
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Extend your company's rules of conduct to cover text messaging. Make sure that the policy addresses sexual and other unlawful harassment. Clearly state that inappropriate images or messages, via cellular telephone or other electronic device, are strictly prohibited and could constitute harassment. Include consequences for harassing behavior.
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Customize the company's harassment training by educating your managers, supervisors, and employees about the changes made to the company's rules of conduct and the correct actions to take if they become aware of any inappropriate behavior.
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Alert managers, supervisors, and employees to the potential that their messages may be misconstrued due to non-verbal communication barriers (including the time of day).
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Advise managers, supervisors, and employees to limit their messages to relevant business matters.
Questions? Please contact WS Attorney Ryan L. Young in our Chicago, IL office at (312) 629-9300, or ryyoung@wesselssherman.com.
