As valuable as email, texting, and social media are to employers, their use doesn’t come without risk for employers.
Courts have allowed employees to establish harassment through the use of email alone, as well as in conjunction with other forms of physical and verbal misconduct. The “harmless” flirtations or jokes (about age, nationality, religion, etc.) that may have been hard to prove in the past are now electronically stored and conveniently packaged for delivery to a jury.
Mobile technology takes this HR nightmare one step further. Now, employees don’t have to be in front of a computer to send an inappropriate email, text, or other social networking message.
“Sexting” refers to the practice of sending sexually explicit text messages to others. The term was coined in reference to the phenomenon of people sending nude photos or sexual messages to each other via text messages on their cell phones. But electronic exhibitionism has quickly made its way into the workplace and manifested itself as just one more form of workplace harassment.
With the introduction of sexting in employment law, employers must now address issues arising from “textual harassment.” The use of text messaging in this manner is simply another form of sexual harassment. It’s no different from harassment via email.
One reason harassment by cell phone may be gaining prevalence is that nearly every cell phone sold now has not only a digital camera but also a video camera and digital audio recorder. These multimedia functions can be used to send messages, photos, and video – by email or text – with the click of a button or even to upload directly to a social networking site. The temptation for abuse is too much for many people, and they often succumb to the inclination at work.
Employees can post sexually explicit messages, photos, video, and audio in the blink of an eye – without a thought to the consequences for themselves or the company.
A few examples of technology-enabled harassment:
- A former waitress sued a Hooters restaurant claiming a manager sexually harassed her with text messages.
- A municipal employee in Illinois alleged that the town president sexually harassed her for years. Part of the harassment included sending so-called “lewd and sexually explicit text messages.”
- A manager overheard a comment made by a female employee to a coworker about buying a new dress. He then sent her a late-night email from his personal account telling her he couldn’t wait to see her in it.
- In England, a teenage employee who claimed she quit her job after being bombarded with suggestive text messages from her 50-year-old boss won her sex discrimination case.
Social media also can be a tool of workplace harassment. Once employees become connected on sites such as Facebook and Twitter, it takes only a few keystrokes to send an improper private message or post something off-color for the whole virtual world to see.
To address and prevent technology-facilitated harassment, employers can take two crucial actions:
- Implement and distribute a clear electronic communications policy.
- Train employees on the use of electronic media, including social networking sites.
Simply blocking access to social networking sites on company computers is rarely effective in blocking an employer from liability. The fact remains that online content is nearly always accessible from other devices, such as smartphones, tablets, and personal laptops that employees sometimes use for work.
In addition to losing out on networking and business development opportunities, an employer may undermine employee morale when it punishes the entire workforce by blocking access because of the misbehavior of a few bad apples.