We are all familiar with sexual harassment as a subject matter for workplace investigations. However, with an increasingly wired workforce dependent on electronic communication, we are in a new era in which employees are becoming victim to “textual harassment”.
Unfamiliar with the term? The objectionable workplace behavior is not touching or grabbing, but forms of electronic communication such as emails, text messages, instant messages and even comments posted on social media.
There are now a number of cases which show how textual harassment in the workplace occurs. A good example is the recent decision, McIntosh v. Metro Aluminum Products. Here, an employee complained that after ending a consensual sexual relationship with her supervisor, he sent her a stream of unwanted sexually charged text messages over a three month period.
These messages included, “any horny girlfriends” and “this is your boy toy” and “can I date your daughter” among other things. The employee told the supervisor verbally and through text that the messages were unwelcome, but he persisted nonetheless.
The employee experienced severe stress, and eventually left the workplace. The Tribunal concluded that the text messages constituted sexual harassment and awarded the employee $30,000 in damages.
From a workplace investigation perspective, textual harassment cases can be challenging. Because the electronic communication is often in the form of texting or instant messages, the messages themselves may be lost as employees tend to delete them quickly. As a result, the best evidence may be the employee’s recollection of what was sent, as opposed to the actual message.