Sex[t]ual Harassment – Do Employers Need a Text Messaging Policy?

Sex[t]ing: (a portmanteau of sex and texting) is the act of sending sexually explicit messages or photos electronically, primarily between mobile phones. Sex[t]ing seems to be an ever increasing phenomenon. Whether it be between Tiger Woods and one of his mistresses or Bob and Mary in Accounting, these messages are the new frontier in both flirtation and sex[t]ual harassment.

As any texter knows, the beauty of the text message is that it is casual, abbreviated and immediate. Indeed, what is more informal than a message that reads “What r u wearing?” Seems harmless enough – unless it is from a male supervisor to a female subordinate at 11:30 p.m.

Much like when e-mail was first introduced, people tend to be more willing to say things via text message than they would in person. They also appear more willing to exchange sexually suggestive or explicit images and initiate communications outside of business hours – after all, their phone is “private,” isn’t it? If, at this point, you are thinking to yourself that, as a human resource professional, text messaging might create some headaches for you, you are not alone.

The best defenses to claims of sex[t]ual harassment, as with other forms of harassment, are 1) an appropriate policy prohibiting the exchange of sexually suggestive and/or explicit texts or pictures amongst employees, and 2) immediate investigation and resolution of any complaints of sex[t]ual harassment. While an employer can certainly argue that its general policy against sexual harassment is sufficient to put employees on notice that sexually explicit text messages between supervisors and subordinates, or even co-workers, are inappropriate, given that much of such conduct can occur outside of both the workplace and normal business hours, it is prudent to include specific prohibitions on sexually suggestive and/or explicit text (or instant) messages between employees in your harassment policy.

Investigations of sex[t]ual harassment claims need to be particularly prompt. Unless either the complaining party or the alleged harasser has saved copies of the messages to his or her phone or printed out copies of such messages, the messages are only maintained, by at least one major wireless provider, for five (5) days after being sent. Without such messages, the employer is left to investigate and resolve a classic “she said, he said” harassment complaint.

By being proactive in amending your sexual harassment policy to specifically prohibit sex[t]ual harassment, as well as promptly investigating any such claims so as to preserve evidence, employers can successfully limit their exposure to this high tech liability trap.

Scott W. Kezman is a partner in Kaufman & Canoles' Labor & Employment Practice Group. His practice focuses on employment and non-competition issues. He also regularly advises clients on labor and employment issues in corporate mergers and acquisitions.  Scott can be reached at (757) 624.3008 or swkezman@kaufcan.com.

This article originally appeared in the Richmond SHRM April 2010 online newsletter.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.

 


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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