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In case of he-said/she-said harassment, can we make employees hand over text messages?

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in Discrimination and Harassment,Human Resources

Q. One of our employees was recently accused of sending sexually harassing texts to another employee. The complaining employee said she was so upset by the texts she deleted them; the accused employee adamantly denies sending the texts. We are not comfortable taking action against the accused without reviewing the texts. Can we search the accused employee’s cellphone or is there a way to retrieve the messages from the complaining employee’s phone?

A. It is wise to try to substantiate the harassment allegations before acting. While an employer has a duty to respond promptly when it knows or should know of potential sexual harassment, an accused individual also has legal rights not to be defamed by false allegations.  

There are various methods for restoring deleted texts if you can access the complaining employee’s device. If either of the mobile devices are your property (or you pay the phone bills), you may be able to retrieve the messages—if you have a written policy reserving the right to monitor the content on the devices.   

If the devices are purely personal, you will likely have to ask the employees to obtain and provide you their text records. They could also give you permission to get the records from their carriers. Due to privacy laws, you may be unable to require either employee to turn over texts stored on a purely personal device. If the complaining employee files a lawsuit, a court order could likely compel handing over the text messages.

If you can’t obtain the texts, you might need to seek other evidence, such as statements from any witnesses.

Whether or not you decide to discipline the accused employee, you should consider issuing a written re­­minder to the accused employee of your expectations under your company’s anti-harassment policy.

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