“Sexting,” “Textual” Harassment On the Rise

Claims of “virtual” sexual harassment—-sexual harassment by email, text message, instant messaging, Facebook, smartphones and other technologies—-are surging.  For example:

• In April 2009, Central Michigan University paid $450,000 to settle a lawsuit brought by two female soccer players who accused their coach of sexually harassing them via text message and manipulating them into secret sexual relationships;
• In July 2009, a 22-year old Oregon woman sued LA Fitness after three of her managers texted her from a bar asking her for sex and identifying X-rated acts they would like to perform on her;
• In August 2009, a Hooters waitress in Fort Lauderdale, Florida sued the restaurant over explicit text messages and photos she received from her manager;
• A former World Wrestling Entertainment employee has filed a lawsuit in Connecticut alleging that she was sexually harassed by a married senior director who pursued her via late night text messages and phone calls; and
• In West Virginia, four Famous Dave’s waitresses sued the company after they received text messages from their supervisor asking for sexual favors.

Experts say the surge in virtual sexual harassment claims is largely a by-product of the informality that modern technology invites.  An employee might think twice before making an inappropriate sexual remark at, say, a corporate meeting.  But emails, texts and instant messages give employees a false sense of intimacy that can invite trouble.

Virtual sexual harassment also presents multiple challenges for employers.  First, many employers have outdated sexual harassment policies that do not specifically address this type of harassment.  The failure to adopt specific measures prohibiting this form of harassment could become problematic when an employer attempts to invoke its sexual harassment policy to defend against a harassment charge–particularly if the employer supplied the technology that enabled the sexual harassment to occur.  Second, virtual sexual harassment, in the form of texts, emails and the like, leaves an evidentiary footprint that other forms of harassment do not.  When it comes to virtual sexual harassment, forget “he said, she said”–the texts, emails and instant messages don’t lie.  And the deletion of pertinent electronic data—-whether voluntarily, involuntarily or pursuant to a document retention policy—-gives rise to concerns over spoliation of evidence.

To minimize concerns, employers should remind employees of their sexual harassment policies, making specific mention all forms of communications, including emails, texts, instant messages and so on.  Employers should also consider amending their sexual harassment policies to specifically prohibit “virtual” sexual harassment.