by Courtney Leyes Tomlinson
Anthony Weiner. Brett Favre. Tiger Woods. Ken Kratz, a District Attorney from Wisconsin. Your workplace? You may be asking yourself what does a former United States Congressman accused of tweeting his private parts, a former professional football player accused of sending sexual texts to a game day hostess, a professional golfer accused of sending sexual texts to various paramours, and a D.A. who admitted to sending over 30 sexually explicit text messages to a domestic abuse victim have to do with your workplace? Everything. Because Anthony Weiner, Brett Favre, Tiger Woods, or Ken Kratz, in a figurative sense, could be your employee.
A New Era of Technology
We live in an age when technology is changing daily. Apple introduces a new iPhone, iPod, or iPod seemingly everyday. There are thousands of applications for your smart phone. Your grandmother first bought a laptop, then a smart phone, and now even has a Facebook account. She’s even begun texting!
Your employees can now be reached anywhere, anytime, and by anyone as people become more dependent than ever on their mobile and smart phones. Now, virtually every mobile phone has a built-in camera, video recorder, and audio recorder. Landlines are becoming a technology of the past. Employees surf social networking sites such as Facebook, Twitter, MySpace, and Pinterest while at work using company property. Employees with mobile phones can send a message within a matter of seconds.
The point I am trying to make? Although the new developments in phone, internet, and mobile technology are truly ground-breaking, the developments create risks for you as an employer never before imagined.
“Sexts” and “Sexting”
With the advent of new technology, a new liability with respect to sexual harassment law has emerged – the “sext.” “Sexts” or “sexting” has been coined to refer to the act of sending or receiving sexually explicit messages, videos, or photos, and courts are now recognizing sexually explicit text messages, social network messages, and emails as forms of what is now being called “texual harassment.” There are a number of problems with sexting and other forms of social network communication for human resources professionals, namely that it can occur surreptitiously, in a matter of seconds, can occur outside of the workplace, and yet still be considered severe and pervasive workplace harassment.
Not being vigilant can be costly. Just ask the New York Police Department. The NYPD is currently being sued by one of its police officers for $30 million in damages related to some inappropriate sexts sent by her supervisor. Specifically, the supervisor deluged her with photographs of his genitals and other suggestive sexts such as “I wish I was was strapped to ur leg after seeing you in those tights. LOL.” Or ask a large electronics store chain. This chain just settled a sexting case for $2.3 million with the Equal Employment Opportunity Commission in August, 2012. In that suit, a supervisor frequently sent one of his subordinates sexually explicit text messages propositioning her and commenting on her body. Both the employee and another supervisor who reported the harassment were fired. Or ask a California-based producer of gourmet food products. This company just settled with the EEOC for $535,000.00 based on the sexual harassment claims of four employees. These claims were premised, in part, on a supervisor’s “sexting” them. Other significant recent lawsuits in the news include a lawsuit in Oregon brought by a former fitness club employee because she was fired for complaining about a number of sexually charged text messages she received from her supervisor, a Florida waitress suing a large restaurant chain because she claims she was sent explicit text messages and pictures from her supervisor, and a Louisiana waitress at a breakfast chain suing her employer because her manager alleged texted her a photograph of his genitals and threatened to stab her if she reported him.
As evidenced above, it is more difficult for employers to defend cases in which an employee alleges sexual harassment by a supervisor rather than by a co-worker. If an employee alleges that the employee was subjected to a hostile work environment based on sexts sent by a co-worker, the employer is only liable if the employer knew or should have known about the textual harassment. However, in cases when an employee alleges textual harassment by a supervisor, an employer can escape liability under what is known as the Faragher/Ellerth defense, named for the Supreme Court cases that established the defense. An employer can raise this defense so long as no tangible employment action, such as discharge or demotion, occurs as a result of the textual harassment. To establish the affirmative defense under Faragher/Ellerth, the employer must prove: (1) “that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior”; and (2) “that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton , 524 U.S. 775, 807 (1998); Burlington Ind., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
However, if a tangible employment action does occur, like in the examples discussed above, the employer would not be able to rely on the Faragher/Ellerth affirmative defense. Then, liability could be imputed to the employer, regardless of whether the employer was aware of the conduct. This is concerning, especially in light of both the immediacy and surreptitiousness associated with communicating electronically. In other words, a supervisor could be harassing one of your employees right under your nose.
What Should Employers Do?
In spite of the above, you can limit your company’s liability under current “textual harassment” law. First, make sure you have clear electronic communications policies in place. Secondly, train your supervisors and employees on the use of electronic communications, including those communications on social network sites and those communications outside of the workplace and on their own personal devices.
Make sure you have a sexual harassment policy in place and update it to address electronic harassment. This harassment policy should state that harassment (electronic or otherwise) based on sex is prohibited; if your employees suffer or observe electronic harassment they must report it; harassment and retaliation against anyone in connection with a complaint will result in discipline, up to and including termination; and sending sexually suggestive/explicit messages and pictures via email, text messages, and other social networking sites is forbidden, no matter when the messages are sent – on or off the clock.
Update your company’s electronic communications policy. Edit this policy to reflect what is permissible conduct when using company-issued devices such as mobile phones, lap tops, etc. and what is not. Include a privacy statement informing your employees there is no expectation of privacy in the use of company-issued electronic devices and that such devices may be monitored in compliance with applicable law. Additionally, notify your employees that they can be disciplined for inappropriate use of electronic communications, company property, etc., up to and including termination.
Review your company’s record retention and data storage policies. Do your policies include the collection, storage and retention of text messages? If they do not, you may want to consider including text messages in the policy.
Train your employees on the above policies. In addition to having these policies in place, you should communicate and reinforce these policies frequently through training, email updates, yearly policy acknowledgments, etc. In these trainings, remind your employees that everything digital leaves a footprint. Even though they may delete a text or email message, these messages are still company property and can be recovered by you. Further clarify that emails and text messages sent from a person account to a co-worker’s (or subordinate’s) personal or company account are covered by the company’s anti-harassment policy. Likewise, iterate that any cyber communications such as posting on a co-worker’s/subordinate’s Facebook wall either on or off the clock can still be investigated by you as potential harassment because of the professional connection between the two individuals.
Take allegations of sexual harassment or sexting seriously. Do not be the next employer in the news. Conduct a prompt and thorough investigation of the allegations. Because of the permanence of electronic communications, make sure you obtain copies of the subject “sexts” and other electronic communications if possible. Take appropriate action upon the conclusion of the investigation.
If you do what is outlined above – revise your policies to reflect the changing harassment law; train your supervisors and employees on your policies; and promptly and fully investigate all allegations of sexual harassment, including taking appropriate action at the conclusion of the investigation, then you have taken the reasonable steps to protecting your employees and your company against the Brett Favres, Anthony Weiners, Tiger Woodses, and Ken Kratzes.