With this whole text-messaging explosion, a new epidemic called “textual harassment” has emerged. I recently read a couple of articles dealing with this new liability concern for employers: textual-sexual harassment. Of course this warning comes from the United States—according to a recent US Justice Department report to Congress, 23 percent of stalking or harassment is happening via text messages. The problem has become so large in the US that 46 states have anti-stalking laws that refer to electronic forms of communication. However… since US lawsuits that involve texting and harassing behaviours are increasing, Canadian employers should beware!
A formal definition of textual harassment is hard to find, and legislators have yet to define it in law. Urban Dictionary defines it as the involvement of harassment (general or sexual) through text messages, or someone sending volumes of text messages that harass, annoy or alarm another person in a manner, which the person knows is likely to cause annoyance or alarm.
Clint Robison of the Los Angeles office of Chicago’s Hinshaw & Culbertson 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.
The Law Technology News article goes on to say:
“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 powerful ammunition in workplace disputes during the past year.
Electronic conversation is such an integral part of office communication today that, but it can clearly lead to trouble. In my opinion, a large part of the problem is that technology—such as email, instant messenging (IM), texting on your cellphone, or posting on social-networking sites—makes it much easier for comments to be misconstrued on so many levels. The point is, it’s hard to put the tone and body language in context because the person is not in front of you.
In the same vein, Internet harassment (also referred to as cyberbullying) is also being identified as a workplace concern. Internet harassment is defined as the use of email, cellphone and pager text messages, instant messaging, insulting or offensive personal websites and defamatory online personal polling sites to support deliberate, hostile behaviour towards an individual.
What makes it worse is that the convenience of modern technology can enable stalkers and bullies to hide behind anonymity.
Many people claimed, in the early days of these technologies, that they would make the workplace more cost-efficient and employees more productive. However, from an employment law and HR perspective, they have brought about a slew of unforeseen problems and liability issues that employers must deal with to protect their bottom lines among other things.
Common law, health and safety and human rights legislation generally support that an employee is entitled to decent treatment by the employer and to work in a safe and healthy work environment. The steps for handling workplace textual harassment and cyberbullying parallel those for handling any other form of harassment, including sexual harassment.
The most efficient way is to implement a prevention plan that includes measures to prevent such behaviours and set rules/procedures. This plan usually includes carefully considered and well drafted anti-harassment policy and procedures. The plan must also have a proactive process of preventing all forms of harassment in the workplace and dealing with them in a timely and effective manner when they do occur. Furthermore, the plan should involve the development of an internal system for the fair and balanced investigation of every complaint of this nature.
Employees should be able to use and rely upon the organization’s internal complaint and resolution system. This system should also provide for consequences against individuals who bring forward frivolous or vexatious complaints. In addition, according to legal experts, and subject to privacy law, employers should review the text messages after an employee complains or as part of some related internal investigation.
Do not forget that communication, educational programs/workshops and training may be the most effective means of prevention. Such programs should focus on understanding the nature of the problem and some of the underlying causes, and encouraging organizations to provide resources for their employees to help identify and cope with such behaviours.
Human Resources and Compliance Managing Editor
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