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Sexting 101 for employers

Oklahoma Employment Law Letter - December 2009

By Tony Puckett

"Sexting" refers to the practice of sending sexually explicit text message to others. The term was coined in reference to the phenomenon of teenagers sending nude photos or sexual messages to each other via text messages on their cell phones. But alas, electronic exhibitionism has quickly made its way into the workplace and manifested itself as just one more form of workplace harassment.


Textual 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 is no different from harassment via e-mail, which was dubbed "e-harassment" by one court. One more reason harassment by cell phone may be becoming more prevalent 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.

Individuals, including employees, can post sexually explicit messages, photos, video, and audio in the blink of an eye. And if media reports are accurate, employees - at least for now - are doing so without a thought about what they are actually doing. They post messages without thinking and certainly without considering how the posts may affect other employees or their own jobs.

In one case, a former waitress sued a Hooters restaurant, claiming a manager sexually harassed her with text messages. In another case, 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." In another recent case, 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 e-mail 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.

A rose is a rose, no matter its name

Harassment by any other name is still harassment. It matters not that the harassing conduct is committed electronically through the ether. That's another aspect of textual harassment that employees overlook. Messages that are sent electronically last much longer than words spoken directly to another person. Moreover, you can search for and print electronically transmitted messages, making it easier to prove that harassment occurred and the identity of the harasser.


What's an employer to do?

What can you do to address and prevent textual harassment? First, have a clear electronic communications policy, and second, train employees on the use of electronic media, including social networking sites. A good policy will address numerous aspects of electronic communication, including harassment. Consider the following when creating your policy:

  • spell out the forms of electronic communications that are covered by your antiharassment policy (e.g., state that employees are prohibited from sending harassing messages via e-mail, text messages, and social networking sites);
  • prohibit all forms of electronic harassment, whether based on sex or another legally protected characteristic (e.g., age, race, or disability);
  • require all employees to report any textual harassment;
  • state that you can and will monitor and investigate all use of electronic communications systems, devices and platforms;
  • make it clear that employees have no expectation of privacy in electronic communications to or from the company's electronic communication systems or to other employees, no matter whose electronic communiation equipment is used;
  • remind employees that use of employer-provided computers, cell phones, and personal digital assistants is a privilege of employment and that you can take away or restrict the use of such equipment at any time and;
  • reiterate that employees can be disciplined for inappropriate use of electronic communications, devices, and platforms, up to and including termination.

In addition, training should be educational in nature and address the following issues:

  • electronically transmitted messages cannot be deleted and can be searched for and printed weeks or months after being sent;
  • e-mails and text messages sent from a personal account to a coworker's personal or company account are covered by your antiharassment policy;
  • off-duty or outside-of-work conduct aimed at coworkers (e.g., posts on a social network) can still be investigated as potential harassment because of the workplace connection between the two individuals;
  • posts on social networking sites may be viewed by persons outside the employee's network of friends and may result in the employee being reported for harassing or inappropriate conduct;
  • you can and will search social networking sites for many legitimate reasons and can see and read what employees are posting;
  • employees should observe accepted workplace behavior and etiquette standards, even in cyberspace communications;
  • before clicking "send," employees should consider whether they would want their mother or spouse/partner to see their post; and
  • employees' posting on social networking sites can affect both current and prospective employment.

Your policy should be issued annually, and employees should be required to sign a form acknowledging receipt of the policy. Conduct training regularly, and consider sending employees updates on social networking and electronic communications issues to reinforce proper conduct.


Takeaway

Employers must remember that the workplace is not static - it evolves as broader cultural and social changes occur because employees are products of our society and culture, and they bring those changes to work with them. As a result, new forms of workplace harassment develop, and you must be vigilant in modifying your existing policies to address those behaviors. If your policies reflect issues presented by current social trends and you train employees on acceptable norms of workplace conduct, you will manage the change effectively.