‘Textual’ harassment? OMG! Develop policy B4 you face lawsuit

by Kristin A. LaRosa, Esq., Pepper Hamilton, LLP

A good smartphone policy makes sense for many reasons. Smartphone functions encompass making phone calls, sending email, browsing the web, playing music, taking pictures and video and playing games—all activities fraught with peril and potential liability for employers.

But one of the most dangerous smartphone functions (from the employer perspective) is also one of the simplest: sending text messages.

Those brief, misspelled, dashed-off messages have spawned a rash of “textual harassment” claims—claims by employees alleging they have received harassing text messages from co-workers or managers.

Many states have updated their harassment laws to include harassment that takes place through the use of cellphones. Such prohibitions are not expressly included in federal or state employment discrimination and harassment statutes, but recent lawsuits make clear that harassment via text message may be found to violate the law.

Is it harassment?

To establish a claim of hostile work environment harassment, an employee must show all of the following:

• He or she suffered discrimination due to a protected characteristic
• The discrimination was pervasive or severe
• The discrimination detrimentally affected the employee
• It would detrimentally affect a reasonable person of the same protected characteristic in that position.

An employee claiming to receive sexually charged messages from a co-worker or supervisor may have an actionable claim of sex harassment. Similarly, an employee who is subjected to racially derogatory remarks in text messages may have a valid claim of race harassment.

As smartphones become more popular and widely used by employees, it is no surprise that companies are seeing a rise in harassment claims based on unwanted text messages from co-workers and managers.

Out of bounds: ‘Hey Sexy’

A recent sex harassment lawsuit filed against the Golden State Warriors NBA basketball team in California alleged that a player sent an employee 61 text messages over several months. They said, among other things, “I want to be with you” and “Hey Sexy.” The claim also alleged that the player sent the employee a picture of his penis via text message. The matter settled for an undisclosed amount.

In Pennsylvania, a black employee claimed racial harassment against his employer based partly on text messages sent to him by his white supervisor. The messages contained racially derogatory remarks and jokes that disparaged blacks. The court concluded that the supervisor’s conduct was due to the employee’s race, was sufficiently severe and had a detrimental effect on the employee.

In New Jersey, a former employee filed a claim of hostile work environment based on text messages from her supervisor regarding his unrequited love interest in her. While the court found that the messages did not contain the level of severity or pervasiveness required to prove a claim of hostile work environment, it also noted that the employee was able to immediately end the unwanted conduct by reporting it to her supervisors, who then took prompt remedial action to stop the messaging.  

Elements of a good policy

Considering the rise in harassment claims based on inappropriate text messages, employers should develop policies addressing textual harassment in the workplace. An employer may be liable for text messages sent by employees over personal devices and, of course, over employer-issued devices.

If you have not already established an anti-harassment smartphone policy, you should do so. Employers that already have such policies should revisit them to incorporate all of the following points:

•    State that employer-issued smartphones, cellphones and other mobile devices are to be used for work purposes only. If you wish to relax the rules to allow for limited, personal use of such devices, the policy should clearly define what types of personal use are acceptable. Conversely, you should also provide examples of conduct that is not permitted.

•    Subject any activity on a smartphone to the company’s anti-harassment policy, including its sexual harassment policy.

•    Describe in your anti-harassment policy what constitutes harassment and include harassment that takes place via text message or is in any other way facilitated by a smartphone, cellphone or other mobile device.

•    Warn employees that any violation will subject an employee to further disciplinary action, including possible termination.

•    Provide clear details instructing employees how and where to report complaints of harassment and ensure that any complaints will be dealt with promptly and effectively.

•    Require every employee to sign and date an acknowledgment form confirming receipt of your anti-harassment and smartphone use policy and his or her promise to comply with it.

Policies that contain these key provisions should help to limit employer liability against textual harassment suits and provide employees with clear direction on the proper and improper use of smartphones in the workplace.

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Kristin A. LaRosa is an associate in Pepper Hamilton’s labor and employment practice and can be reached at (609) 951-4142 or larosak@pepperlaw.com.