Textual harassment: has technology opened employers up to more claims?

• Author: Sims, Kristine M.
• Position: LAW JOURNAL 2010

Title VII of the Civil Rights Act was enacted in 1964 and was the first comprehensive federal legislation prohibiting discrimination. It makes it an unlawful employment practice for any employer to harass or engage in employment discrimination against any individual based on that person's race, color, religion, sex or national origin. Threats, intimidation or coercion in the workplace based on such status are likewise covered. Sexual harassment has long been recognized as a workplace problem, but with today's technological advancements, employers are facing issues of "textual" harassment as well as sexual harassment.[dagger]

Over the years, sexual harassment has taken on many new looks. New forms have entered today's workplace with a vengeance and create just as many problems, if not more, for today's employer. Several years ago, employment-law defense attorneys and human resource professionals focused harassment prevention presentations on what was said or done in the workplace. With the advent of e-mail and an increased focus on the Internet, employees were cautioned against forwarding inappropriate jokes, accessing less-than-professional websites at work, etc. It is time to add cell phones and social media as avenues for harassment. Companies must be sure they cover the new frontiers in harassment claims--those arising from technology in the workplace as well as social media outlets such as MySpace, Facebook and Twitter, which have a tendency to blur the lines between work and off-duty conduct.

Why is texting such a problem in today's workforce? First, texting, like instant messaging and other electronic forms of communication (including e-mail) can be viewed as less formal. Therefore, individuals are more likely to play "fast and loose" with the rules. People send text messages that they would never send through a company's e-mail system or say face-to-face. Also, texters have a false sense of security that they will not get caught. However, they should be mindful that texting, like e-mail, can be retrieved. It is important that employees who are issued company cell phones, Blackberries, laptops or desktops are apprised of the expectations for use of the same and made aware that their use of these devices both on and off work hours can lead to disciplinary action. Finally, as technology enters the workplace and more individuals become tech-savvy, texting becomes more prevalent, thus leading to more opportunity to run afoul of a...