Treat Textual Harassment Like Other Harassment, HR Advises

By Kathy Gurchiek Sep 15, 2009
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​Textual harassment is on the rise, according to the July 20, 2009, issue of The National Law Journal, citing recent court cases around the United States.

Textual harassment involves sending offensive or inappropriate text messages. “The most prominent cases have involved male bosses who have sent scandalous texts to female employees, asking them out on dates or promising promotions in exchange for sexual favors,” the Journal reports.

In a recent case, a Cicero, Ill., municipal employee alleged that the town president harassed her sexually for years, including sending her so-called “lewd and sexually explicit text messages,” the Windy City Watch reported June 8, 2009. Other female employees have come forward with similar allegations.

Although the U.S. Equal Employment Opportunity Commission (EEOC) says it has no statistics tracking the prevalence of textual harassment, it advises employers to treat it as it would any form of harassment—through clear anti-harassment policies and swift action.

Harassment is harassment, regardless of how it’s communicated, according to Dianna Johnston, assistant legal counsel for the EEOC.

“Anything in the environment that makes the workplace hostile can contribute to liability” for the employer, she told SHRM Online.

“The test is the same whether you’re talking about written or verbal harassment. The bottom line is the same at any time,” she said.

“Because you can’t really erase things from computers, generally speaking, employers are going to have more control. It may be a lot easier for them to determine who has sent some kind of offensive e-mail than trying to find out who wrote the graffiti on the bathroom wall.”

In the case of the Cicero municipal employee, her lawyer is trying to retrieve the e-mails the woman says the town president sent her.

Johnston advises employers to have an anti-harassment policy, to make sure employees understand the policy and to respond “immediately and appropriately when a problem comes up.”

“I do think people are lulled into a sense that e-mail and other kinds of electronic products are private,” she said.

“Employers have an obligation to make sure the employees understand the policy … and step in and take whatever corrective steps are appropriate to the offense,” from a verbal reprimand to termination.

Forty-six states have laws that mention electronic forms of communication in stalking or harassment laws, according to the National Council of State Legislatures. State laws for Kentucky, Nebraska, New Jersey and New Mexico don’t include specific references to electronic communication but might still apply to those who threaten or harass others online, the council says on its web site.

The definition of harassment varies by state, but a single text message is enough to meet the definition of textual harassment in California if the message threatens physical harm or is obscene, according to TextualHarassment.com, which provides links to state computer harassment and cyberstalking laws, the Federal Communications Commission list of prohibited text messaging web sites, and other related links.

Virtual harassment can take a variety of forms, including sexting—sending sexually explicit messages or photos by phone or posting them on social web sites—and cyberstalking.

In one case, a Massachusetts prosecutor charged a man with using remailers systematically to harass a co-worker electronically and then trying to blackmail her into giving him sexual favors, according to one of two U.S. Department of Justice reports on cyberstalking.

“Cyberstalking cases are still fairly new,” says Jayne Hitchcock, president of Working to Halt Online Abuse (WHOA). It receives from 50 to 75 requests weekly for help against online harassment. Among the 234 requests it received in 2008, only 6.5 percent were work-related; a majority were from a former personal relationship.

It’s essential that HR professionals keep up with the various forms of electronic communication, says Shanti Atkins, a former employment lawyer at Littler Mendelson. She is president and CEO of ELT, which specializes in ethics and compliance training.

“HR needs to dig into how these technologies are being used,” she said, noting that not long ago most people had never heard of Twitter and micro-blogging.

In the book, Smart Policies for Workplace Technologies: Email, Blogs, Cell Phones & More (Society for Human Resource Management, 2009), the author advises making it clear that an organization’s rules of conduct extend to e-mail and instant messaging as “the extremely informal nature of [instant messaging] makes it even more vulnerable” to harassment, inappropriate jokes and comments, and unprofessional conduct.

“People tend to lose their minds as to where the boundaries lie” with the new technology, Atkins said. “It’s so fast. It’s so quick. You get that little thrill from it that you’re connecting and impacting people in real time.”

Contributing to the “messy blur” between work and personal time is that social media tools move easily between work and non-work life, fitting into someone’s pocket on the shop floor, she noted.

And while some might question whether the media tool—such as an employer-provided BlackBerry, computer or cell phone—belongs to the individual or the employer and whether its use really impacts the workplace, “you have no reasonable expectation of privacy at work, and what you do is not necessarily private and protected,” Atkins said.

In managing the next generation of workers, it’s important for HR to realize those workers have “much looser attitudes about posting pictures of [themselves] online,” and the stakes for potential harassment climb when workers start adding video-rich content.

Training is essential to warding off harassment, Atkins told SHRM Online.

“You got to bring it to life in training, and you’ve got to use contextual examples” to keep things “refreshed and totally up-to-date. The main issue is really making clear to employees, ‘yes, there can be this personal work/life blur. These are the rules when you’re on working time or on workplace equipment.’ ”

Problems arise, Atkins said, when a manager who has a great team of people is embarrassed about having to be stringent about the policy and tells them it doesn’t apply to them.

“Yeah, you don’t need to worry about it. You’re not going to abuse this [technology],” the manager tells them and turns a blind eye when the star employee does break the rule, Atkins says, sketching out a hypothetical situation. The problem is compounded when another worker misuses the technology and is disciplined.

“The employer can undermine the policy and kind of kick its legs out from it” by being inconsistent, Atkins said.

She advises customizing harassment training. Educate rank-and-file workers by setting expectations and being clear about the rules. Educate managers on issues such as how to deal with harassment complaints, the rules and guidelines for ‘friending’ employees on social web sites, and the duty to be vigilant in looking for transgressions and problems.

“The vast majority of HR headaches and nightmares and problems around this is not [related to] the malicious cybersexual deviant,” Atkins said, but “people who just haven’t thought through some of the implications of what they’re doing.”

Kathy Gurchiek is associate editor for HR News
. She can be reached at kathy.gurchiek@shrm.org.

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