Sexual Harassment and Text Messaging: When Does an Unfortunate Turn of Phrase Constitute Harassment?

Workplace sexual harassment cases in New York (and beyond) often appear pretty cut and dry to objective observers. For instance, a boss may make outrageous comments in the office or grab or grope an employee, sometimes to horrific effect.

That said, when it comes to more impersonal modes of communication, like text messaging, it can be more challenging to prove misconduct or wrongdoing. Was a weird comment or awkward picture harassment… or a glitch or typo?

Context is crucial. If your boss has a habit of ogling you at work, asking you out and making inappropriate comments about your boyfriend… and then he texts you a nasty picture or veiled sexual innuendo… such text messages could likely be considered evidence of harassing behavior.

On the other hand, maybe you’re friends with an awkward colleague who makes off-color jokes and who doesn’t read other people well; one night, he texts you a bizarre joke that could be harassment, but maybe it’s not?

No matter what strange messages you receive from colleagues or employers or clients, consider taking these steps:

1.    If you have any concerns for your safety, tell someone and get help immediately.

2.    Familiarize yourself with your workplace’s process for dealing with harassment. Report what happened sooner than later. Your anonymity should be protected, and your employer is legally not allowed to retaliate against you for reporting the harassing behavior.

3.    Keep a solid paper trail. Do not immediately erase the offending texts from your phone, and time and date stamp any conversations you have with the purported harasser as well as with your company’s HR department. Try to record this information as soon as you can after any key conversations, because human memory tends to be porous, and you want an accurate and precise record.

4.    Consider reaching out to an experienced New York employment attorney. Our team here at Joseph & Kirschenbaum LLP can provide a safe, confidential and thorough intake evaluation. Set that up now by e-mailing or calling us at (212) 688-5640.

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