“Textual harassment” is nothing to LOL about, warn employment lawyers.
Attorneys say that text messaging in the workplace is turning into a growing liability for employers, which are landing in court over inappropriate and offensive texts that are popping up on employees’ cell phones.
Perhaps the biggest culprits, they note, are male bosses who are sending scandalous text messages to female employees, asking them out on dates or promising promotions in exchange for sexual favors. These texts are explosive evidence in lawsuits, they said, and pretty tough to dispute.
“We’re actually seeing it happening … lawsuits are being filed, where an employee will testify that one of the means that they were harassed by someone was through text messages,” said Clint Robison of the Los Angeles office of Chicago’s Hinshaw & Culbertson, who is handling several textual harassment lawsuits on behalf of employers. “[Text messages] come up in pure harassment claims and wrongful termination lawsuits, where employees are being deposed and saying, ‘Well, I can prove [harassment] because the dinner date invitation from by boss was sent to me by my boss late at night.’”
Robison is currently handling four lawsuits in which employees are suing their employers over inappropriate texting at work. Two cases involve female workers who allege their supervisors harassed them by sending them inappropriate text messages, hinting at promotions in exchange for sexual favors. Another involves co-workers creating a hostile work environment by exchanging messages back and forth that another employee found offensive.
“There’s a workplace bullying aspect of it, too,” Robison said of text messaging in the workplace. “Maybe it starts as a little harmless joke, but not everyone has the same sense of humor. Suddenly what was funny to a couple of people is no longer funny to one person.”
Before a company knows it, Robison said, a complaint gets filed, then an investigation, and the inevitable lawsuit.
For employee-rights attorneys, text messages have turned into some powerful ammunition in workplace disputes in the past year.
In April, text messages helped two female soccer players who accused their coach of sexual harassment secure a $450,000 settlement from Central Michigan University. The women alleged that the coach used manipulation to carry out secret sexual relationships with them. He also sent the players inappropriate text messages, which were used to help bolster their claims and settle the claims before filing in federal court.
Text messages could also prove problematic for the World Wrestling Entertainment company, a defendant in a pending federal sexual harassment lawsuit in Connecticut brought by a former licensing coordinator. The woman claims she was sexual harassed by a married, senior director of a consumer products division, who allegedly pursued her intimately via late night text messages and phone calls.
In West Virginia, four waitresses at Famous Dave’s restaurant also pointed to text messages in pursuing sexual harassment claims against a supervisor last year, alleging, among other things, that he sent sexual text messages asking sexual favors.
Make no mistake, employee-rights attorneys say, text messages are potent evidence, and plaintiffs attorneys are grabbing hold of them whenever they can.
“Those have really been a gold mine in terms of finding evidence to support and corroborate claims of sexual harassment in the workplace,” employee-rights attorney Jennifer Salvatore said of text messages. “In the he-said-she-said cases, you look at the texts and you can see who is telling the truth.”
Salvatore, of Ann Arbor, Mich.-based Nacht & Associates, recently used text messages to help secure the $450,000 settlement on behalf of the two female soccer players at Central Michigan University.
“[The coach's] words came back to haunt him,” said Salvatore, who is increasingly relying on text messages to prove harassment in the workplace. “I’m asking clients who come in who have a sexual harrasment claim, ‘Were there text messages sent back and forth? And if so, give me your phone.’”
David Walton, a management-side attorney at Cozen O’Connor, concedes that there’s an an incidence of sexual harrassment via text messages. However, he stressed that employers are not frequently reviewing text messages because of the time-intensive effort that is required. He said most reviews are done after the fact, after an employee complains or as part of some related internal investigation.
Walton, who is vice chairman of his firm’s e-discovery task force, said there are privacy issues that employers need to consider before reviewing text messages. For example, if the employer owns the device, it has the right to review it. But, if the employee owns the device and is reimbursed for the service, “the employer doesn’t have an unfettered right to review,” he said.