Sexual Harassment Goes Digital

News of the $20 million settlement reached in the FOX News sexual harassment suit has us—and other commentators—thinking about the current wave of sexual harassment claims. Sexual harassment remains a significant and expensive issue for employers even after all these years. The EEOC received more than 6,800 sexual harassment charges in 2015, and obtained more than $46 million in damages and benefits for claimants. That amount doesn’t include monetary benefits obtained through litigation, so the numbers are staggering. Employers continue to lose money paid out in settlements, judgments and fees and the costs don’t end there. Sexual harassment results in reduced productivity, lowered morale, and increased turnover. Public disputes can diminish an employer’s reputation and limit opportunities to hire the best workers.

Sexual harassment in the workplace can take many forms. From the sexually explicit remarks and suggestive innuendo alleged by Gretchen Carlson, to unwanted touching, to demands for sex in exchange for job benefits, to the circulation of sexual materials and pictures, people find many ways to create a hostile and offensive working environment.  The ever-increasing use of electronic communication and digital technology in the workplace has brought huge benefits, but it has also created a series of new opportunities, and a new platform, for inappropriate behavior.

As employees engage with one another—in and out of the office—through email, text messages, instant messaging, and social networks, the lines between professional and personal lives become blurred. Harassment can take the form of offensive and uninvited emails or text messages, comments and posts on Facebook or Snapchat, or communications through other social networks or online forums. Even digital communications that occur between co-workers outside of the workplace can be deemed to contribute to a hostile, offensive or sexualized working environment.  If they are, an employer can be liable if it was aware of the postings, if the communications occurred between supervisors and subordinates, or if the harassing employee was using employer-owned devices or accounts.

It isn’t all bad news, though. Digital technology can help solve some of the problems it creates. Employers are able to monitor the digital technology and platforms they provide, and can use monitoring to identify and correct inappropriate communication as it occurs. Employee monitoring, like all applications of technology, comes withrisks and rewards of its own, but is an important part of meeting the employer’s obligation to provide a working environment that is reasonably free of harassment.

So what can an employer do?

We’ve previously covered the basics of preventing sexual harassment in the workplace, but there are a few things employers can do that are particularly relevant to harassment that occurs through electronic communication.

  • Review your sexual harassment policy to ensure that it encompasses electronic communications and online and social media activities.
  • Expressly prohibit sexually explicit communications on company technology.
  • Implement or update your electronic communications policy. It should inform employees that they have no expectation of privacy when using company devices or accounts, that the company may monitor their computer usage, and that they may be disciplined for inappropriate use of company technology.
  • Make sure your policies broadly define social media and online activity.
  • Review harassment and electronic communications policies annually to ensure that they address ongoing developments in technology and social media.

By Judy Langevin and Laura Bartlow at Zelle LLP.

Judy frequently lectures and writes on employment law topics for both legal and business audiences, and serves as a mediator of employment disputes.  Judy has built a prominent career defending employers in discrimination and wrongful termination litigation, including sexual harassment cases, and providing advice and training on personnel issues. One of her special interests is theater- based training for employers and employees.

Laura practices in the areas of complex litigation and employment law. She possesses extensive experience researching and analyzing a variety of labor and employment law matters in both private and public sectors. She has advised clients and senior lawyers on state and federal law concerning wage-and-hour disputes, discrimination and harassment claims, whistleblower claims, and employee benefits issues, and has drafted and reviewed employment policies and employee handbooks.

This article was originally posted at the Employment Law Navigator and is republished with kind permission of Judy Langevin.