Last year we advised employers about the effectiveness of a good smartphone policy. In that article, we explained the risks and liabilities extended to employers who failed to implement a sound policy pertaining to the use of smartphones by employees. The article noted the recent trend in litigation of claims of “textual harassment” against employers: harassment claims asserted by employees who allege to have received harassing messages from co-workers or managers.
Many states have updated their harassment laws to include harassment that takes place through the use of cell phones. While such prohibitions may not be expressly included in federal or state employment discrimination and harassment statutes, recent lawsuits make clear that harassment via text message may be found to violate such statutes. To establish a claim of hostile work environment harassment, an employee must show that she or he suffered discrimination due to a protected characteristic; the discrimination was pervasive or severe; the discrimination detrimentally affected the employee and the discrimination would detrimentally affect a reasonable person of the same protected characteristic in that position. Certainly, 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.
With the increasing popularity and use of smartphones 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.
Cases of ‘Textual Harassment’
A recent sex harassment lawsuit filed by a former employee against the Oakland, California basketball team the Golden State Warriors was based on claims that one of the players sent the employee 61 text messages over a number of months, which said, among other things, “I want to be with you” and “Hey Sexy.” The claim also included allegations that the player sent the employee a picture of his penis via text message. The matter settled for an undisclosed amount.1
In Pennsylvania, an African-American employee asserted claims of racial harassment against his employer based, in part, on text messages that were sent to him by his Caucasian supervisor.2 The text messages contained certain racially derogatory remarks and jokes towards African-Americans. In analyzing the employee’s claims, the court concluded that the supervisor’s conduct toward the employee 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 against her former employer based, in part, on text messages she received from her supervisor regarding his unrequited love interest in her.3 While the court found that the messages did not contain the level of severity and/or pervasiveness required to prove a claim of hostile work environment, it also noted that the employee was able to immediately terminate the unwanted conduct by reporting it to her supervisors, who then took prompt remedial action to make the messaging stop.
Policies Against Text Harassment in the Workplace
With the increase in the use of smartphones and text messaging in the workplace, coupled with the rise in harassment claims based on inappropriate text messages, employers would be remiss if they did not have 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. Since effective policies will help protect an employer from legal liability, if you have not already established an anti-harassment policy that addresses harassment via smartphones, cell phones or PDA devices, you should do so. Employers who already have such policies should revisit them to incorporate some or all of the following points:
- employer-issued smartphones, cell phones or PDA devices are to be used for work purposes only
- if the employer wishes to relax the rules to allow for limited, personal use of such devices, the policy should clearly define what types of personal use shall be acceptable. Conversely, employers should also provide examples of conduct that is not permitted under the employer’s personal usage allowances
- any activity on a smartphone is subject to the company’s anti-harassment policy, including its sexual harassment policy
- an anti-harassment policy should describe what constitutes harassment and include harassment that takes place via text message or is in any other way facilitated by a smartphone, cell phone or PDA
- an anti-harassment policy should warn employees that any violation will subject an employee to further disciplinary action, including 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 the employer’s anti-harassment and smartphone use policy and his or her promised compliance with it.
As we said in our prior article, complete insulation from liability can never be guaranteed. However policies that contain these key provisions should help to limit employer liability against textual harassment suits and provide employees with clear direction as to the proper and improper use of their smartphones in the workplace.
1 See http://www.mercurynews.com/warriors/ci_20807275/salacious-sexual-harassment-lawsuit-against-warriors-ellis-settles.
2 See Griffin v. Harrisburg Prop. Servs., 2009 U.S. Dist. LEXIS 109097 (M.D. Pa. 2009).
3 See Anastasia v. Wakefield, 455 Fed. Appx. 236 (3d. Cir. 2011).
Kristin A. LaRosa