Authored by: Mercedes Colwin 1 Gordon & Rees LLP New York, New York

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1 R U My Cookies?: Sexual Harassment in the Age of Technology Authored by: Mercedes Colwin 1 Gordon & Rees LLP New York, New York This paper has been prepared for general information and is not intended to be relied upon as legal advice. 1 Christopher A. Seacord, Esq., an associate in the New York City office of Gordon & Rees LLP, assisted with the preparation and writing of this paper. Mr. Seacord is licensed to practice in the state of New York. 1

2 Mercedes Colwin, Esq. Mercedes Colwin is the managing partner of Gordon & Rees New York office. She handles a wide variety of litigation, including employment law, commercial litigation, products liability, civil rights violations and criminal law. Ms. Colwin has successfully tried 48 cases to verdict in various jurisdictions throughout the nation. Ms. Colwin regularly defends corporate executives from Fortune 500 companies accused of wrongdoing including claims of sexual misconduct. Prior to private practice, Ms. Colwin served as an Administrative Law Judge for the New York State Division of Human Rights. During her nine years of service, while a partner at a major regional New York law firm, she presided over three thousand cases brought under the federal and state discrimination laws. Recently Forbes Business American Airlines named Ms. Colwin one of the six most influential women in America. This list included dignitaries such as former U.S. Secretary of State Madeline Albright. Notre Dame Law School also presented Ms. Colwin with the prestigious Graciela Olivarez Award for outstanding achievement as a leading Hispanic lawyer of the highest ethical and moral standards, the same award that was once presented to Supreme Court Justice Sonia Sotomayor. Widely regarded as one of the top national legal analysts on the Fox News Channel, she appears to discuss critical legal issues and high profile cases. 2

3 INTRODUCTION Today s technological advancements in the workplace have catapulted productivity to an all-time high. From the online file system to the simple , new technology continues to propel businesses forward. But with new technology comes a new form of sexual harassment of which employees and employers must be aware. The explosive growth of social networking sites (e.g., Facebook, Twitter, Tumblr, Instagram and Foursquare) and computer-based communication platforms are reshaping sexual harassment in dramatic ways. As more and more employees choose to communicate via electronic media, individuals are finding new ways to subject their coworkers to unwanted and offensive communications, as well as new ways to subject their employers to civil liability. In Part I of this paper, we provide a brief overview of the evolving nature of electronic communications and how such communications may facilitate sexual harassment. In Part II, we discuss some recent cases addressing claims of sexual harassment by electronic means. Finally, in Part III, we address some of the tools available to employers to monitor their employees electronic communications. I. Electronic Communication and Sexual Harassment To the layperson, sexual harassment consists of chasing the secretary around the office, the typical sleep with me or you re fired scenario, and/or inappropriate and offensive touching. Those days are primarily over. Today, as in-person communication gives way to communication via cell phones, text messages and s, sexual harassment has shifted alongside the age of technology. As society becomes increasingly more connected through electronic communications, more and more employees find themselves inviting their coworkers into their personal lives. 3

4 Before the prevalence of cell phones, it was highly unusual for coworkers to exchange personal telephone numbers for purposes of work-related communications; now, however, such exchanges are the norm. It is not uncommon for employees to use the same mobile device for both personal and business purposes, and giving your cell phone number to a coworker does not include an implied guarantee that your communications will remain work-related. Indeed, providing your cell phone number to a coworker gives him or her 24-hour access to your personal life, and perhaps implies a level of familiarity to which you had no intention of consenting. The advent of social media sites such as Facebook also has expanded the universe of people with whom we share our personal lives, and the mere acceptance of a friend request from a coworker may serve as an implied invitation to engage in communication that would otherwise be inappropriate in the workplace. You may view your acceptance of your coworker s friend request as a mere courtesy, while he may view it as a tacit confirmation that your interactions are no longer restricted to the office. Maybe that innocent posting of your vacation to the beach sends out a welcoming vibe and a completely wrong message to coworkers who see it. The prevalence of electronic forms of communication not only blurs the lines between personal lives and work lives, it also increases the likelihood that an otherwise innocent comment will be misinterpreted or misconstrued. The standard comment complimenting an employees new haircut in passing at 12:00 p.m. in the afternoon at the office bears a different connotation than the same compliment to the same employee at 12:00 a.m. via text message or Facebook comment. Even if intended as a mere compliment, a 12:00 a.m. Facebook comment likely will not be interpreted as such. The extended communication that today s technology 4

5 brings may be a norm on one end of the computer screen, and completely inappropriate on the other. What is even more problematic is that because electronic conversation is such an integral part of office communication, some may feel obligated to respond to comments even if it makes them uncomfortable. This leads to an ongoing pattern of misunderstood communications that could cause serious problems in the future. The same issue is posed with the text message, the , and the instant message. With text communication, it is far too easy for messages to be misinterpreted or misconstrued. When we talk to one another in person, much of our intended meaning is communicated through body language and the tone of our voice. When we communicate electronically, however, those critical nonverbal cues are gone. A person reading your text message cannot see you laughing when you send it, and what you very clearly viewed as a joke, the recipient may interpret as something far more sinister. And that is to say nothing of an auto-correct function that seems intent on embarrassing its user. Electronic communication also provides individuals with means by which to say those things they may be reluctant to say in person. That flirtatious comment or offensive joke may be easier to get out when there is no risk of receiving a look of rejection or disgust in return. And if you make the mistake of responding with a lol or, heaven forbid, an emoticon, chances are that your coworker will view it as just the opening for which he or she was looking. Thus, electronic communication provides for a layer of cover that does not exist in our in-person dealings. The harasser may feel empowered to make offensive comments that he would not communicate in person, and hide behind the claim that his comment was misinterpreted. In turn, the recipient may be reluctant to report the potentially offensive comment for fear of creating an issue where one does not exist. 5

6 Technology pushes the boundaries of workplace relationships. Professional connectivity never ends; with the utilization of the and computer/smart phone interactions, it becomes harder and harder for an employee to draw the line and create boundaries regarding what is and is not appropriate. And since work is so connected into employees personal lives, the privacy boundaries become a line that seems to get finer and finer by the minute. II. Recent Cases Involving Sexual Harassment Via Electronic Means It has long been settled that employers may be held liable for the harassing conduct of their employees. 2 While the applicable standard varies depending on whether the alleged harasser is the plaintiff s coworker or supervisor, the fact remains that employers may be held liable for harassment perpetrated by an employee, even when the employer had no knowledge of the conduct giving rise to the harassment allegations. 3 Specifically, when the harassment is committed by the plaintiff s coworker, the employer may be held liable under Title VII if it was negligent in controlling working conditions. 4 With regard to harassment by a supervisor, the employer will be held strictly liable if the harassment culminates in a tangible employment action, such as a termination, demotion or suspension without pay. 5 When no tangible employment action ensues, an employer may still be held liable for a supervisor s harassment unless it can demonstrate both elements of the Faragher/Ellerth defense: (1) that it exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the 2 See Vance v. Ball State Univ., 133 S. Ct. 2434, (2013). 3 Id. at Id. 5 Id. 6

7 employer provided. 6 In some states, such as New York, the burden on employers is even more onerous, and an employer will be held strictly liable for any harassing behavior by a supervisor, regardless of whether the harassment resulted in a tangible employment action. 7 Additionally, despite the general rule that, in order for a sexual harassment claim to be actionable, the alleged conduct must have occurred in the workplace, 8 courts have not hesitated to find actionable harassment claims against employers where the challenged conduct consisted of communications via personal accounts, personal cell phones, text messages, and/or social-networking sites. 9 For example, in Cherry v. Shaw Coastal, Inc., the United States Court of Appeals for the Fifth Circuit upheld a jury verdict finding an employer vicariously liable for same-sex sexual harassment committed by plaintiff s supervisor, where the alleged harassment consisted of inappropriate touching and sexually explicit text messages sent to the plaintiff s personal cell phone. 10 In Cherry, the jury initially returned a verdict for plaintiff on his sexual harassment claim, but the district court granted defendant s motion for judgment as a matter of law and set aside the jury s verdict, concluding, among other things, that the alleged conduct was not sufficiently severe or pervasive to constitute a hostile work environment, and that plaintiff had failed to establish that the employer should be held liable for its employee s conduct. 11 The Fifth Circuit reversed and remanded with instructions to reinstate the jury s verdict with respect 6 Id.; Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. Boca Raton, 524 U.S. 775, 807 (1998). 7 See, e.g., N.Y.C. Admin. Code 8-107(13)(b)(1); Zakrzewska v. New School, 14 N.Y.3d 469, (N.Y. 2010) 8 See, e.g., Hendricks v. 333 Bayville Ave. Restaurant Corp., 260 A.D.2d 545, 546 (2d Dep t 1999) (dismissing plaintiff s hostile work environment claim against her employer based on an alleged rape by her coworkers because plaintiff did not allege that the rape occurred in the workplace). 9 See, e.g., Hollis v. Town of Mt. Vernon, No CG-N, 2013 U.S. Dist. LEXIS (S.D. Ala. July 16, 2013) (personal s and text messages); Garvin v. Siouxland Mental Health Servs., No. C MWB, 2012 U.S. Dist. LEXIS (N.D. Iowa May 18, 2012) (personal telephone calls, text messages, and communications through Facebook); D'Angelo v. World Wrestling Entm't, Inc., No. 3:08-CV-1548 (JCH), 2010 U.S. Dist. LEXIS , at *13 (D. Conn. Oct. 15, 2010) (rejecting defendants argument that it could not be held liable for the alleged offensive conduct of its employee because the communications occurred by telephone and , as opposed to in person). 10 Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 189 (5th Cir. 2012). 11 Id. at

8 to the sexual harassment claim. 12 In particular, the Fifth Circuit concluded that, when the touching incidents and text messages were viewed together, there was ample evidence to support the jury s conclusion that the supervisor s conduct was sufficiently severe and pervasive to constitute a hostile work environment. 13 Additionally, on the issue of employer liability, the Fifth Circuit held that the employer failed to meet its burden of establishing that it took prompt remedial action in response to plaintiff s complaints. 14 In reaching this decision, the court noted that the employer failed to promptly investigate plaintiff s complaints of harassment, despite being presented with concrete proof of text messages. 15 Similarly, in Hollis v. Town of Mt. Vernon, the United States District Court for the Southern District of Alabama denied the Town of Mt. Vernon s ( the Town s ) motion for summary judgment with regard to plaintiff s sexual harassment claim where the alleged conduct consisted of, among other things, sexually-charged text messages and s from plaintiff s coworker. 16 In Hollis, the defendant sought dismissal of plaintiff s sexual harassment claim on the grounds that, inter alia, plaintiff, a police dispatcher, could not demonstrate that the harassing conduct affected the terms and conditions of her employment. 17 In particular, the defendant argued that Plaintiff has presented no evidence that any of the alleged harassment [by her coworker] was work-related or took place in public while the Plaintiff was on duty. 18 The court rejected this argument, stating that it ignored the evidence in the record. 19 Among other things, the court noted that the coworker frequently sent plaintiff text messages and s, to her 12 Id. at Id. at Id. 15 Id. 16 Hollis v. Town of Mt. Vernon, No CG-N, 2013 U.S. Dist. LEXIS (S.D. Ala. July 16, 2013). 17 Id. at * Id. 19 Id. 8

9 personal cell phone and account, while she was on duty. 20 Notably, the Town s dispatchers used their personal accounts and cell phones for work purposes, but the court s decision likely would have been no different had the communications not taken place over a media that also was used for business. 21 Rather, for the court, the fact that the s and text messages occurred while plaintiff was on duty was sufficient to warrant the conclusion that they affected the terms and conditions of her employment. 22 Finally, in Garvin v. Siouxland Mental Health Services, the United States District Court for the Northern District of Iowa addressed a sexual harassment claim involving allegations by plaintiff that her supervisor repeatedly made sexual overtures towards her and asked her to engage in a sexual relationship. 23 The communications in question occurred in person, over the telephone, via text message, and through on-line chats on Facebook. 24 Once again, the court was unfazed by the fact that some of the communications at issue occurred over media that were not used for work purposes, or the fact that some of the communications did not occur during business hours. 25 Rather, the court seemed to find it sufficient that at least some of the alleged conduct occurred in the workplace during work hours. 26 As a result, the court denied the employer s motion for summary judgment with respect to plaintiff s sexual harassment claim. 27 What these and other cases demonstrate is that the dividing line between employees work lives and personal lives are becoming increasingly blurred. This is due, in no small part, to the ever increasing number of electronic media employees use to communicate with one another. 20 Id. 21 Id. at * Id. at * Garvin v. Siouxland Mental Health Servs., No. C MWB, 2012 U.S. Dist. LEXIS 69404, at *76-79 (N.D. Iowa May 18, 2012). 24 Id. 25 Id. 26 Id. at * Id. at *92. 9

10 As a result, an employer who fails to keep abreast of the evolving manner in which its employees communicate does so at its own peril. III. Employee Monitoring As a Means of Curtailing Harassment In order to protect themselves from potential liability arising out of the conduct of their employees, employers can, and should, avail themselves of the various technological advancements that allow them to monitor their employees activities online. It is thus important for employers to be aware of the technology available to monitor their employees activities, and for employees to be aware of how their activities likely are being monitored. Employers have a myriad of options for monitoring their employees computer and internet usage. Electronic mail, voice mail, and postal mail all can be monitored by an employer. 28 If an system is operated by the company, the employer owns it and is allowed to review its contents. 29 Employers may also monitor personal s sent from company computers and mobile devices. 30 While the Electronic Communications Privacy Act of 1986 (hereinafter ECPA or the Act ) sets forth some limitations on how an employees personal s may be monitored, the Act is fairly weak and provides exceptions based on consent. 31 Such consent forms can be included in employment agreements or employee handbooks, and 28 Donna Ballman, Nine ways your employer may be legally spying on you, Financial Post: Business Insider, at (Aug. 7, 2013). 29 Alana Semuels, Tracking workers' every move can boost productivity and stress, Los Angeles Times, at (April 8, 2013). 30 Donna Ballman, Nine ways your employer may be legally spying on you, Financial Post: Business Insider, at (Aug. 7, 2013). 31 Electronic Communications Privacy Act of 1986, Pub. L. No , 100 Stat (codified as amended at 18 U.S.C ); see also Donna Ballman, Is Your Boss Reading Your ?, AOL Jobs, at (May 11, 2011). 10

11 effectively allow employers to monitor and review personal s sent from company devices. 32 Some employers have even begun using keylogging programs, which can record every keystroke made on a particular computer, including passwords. 33 With regard to conversations, many states follow the law that if one party consents, the conversation can be recorded. 34 There are strict federal wiretap laws that call for stringent conditions on monitoring telephonic communications; however, if the employee signed a consent form, the employer is allowed to listen in. 35 Many employers video monitor employees, and as long as the video recording does not include audio, there are few limitations on this form of employee monitoring. 36 Internet usage is also reviewed by employers for vast reasons including the regulation of employees work hours and preventing the usage of inappropriate websites such as pornography, online shopping, or social media. 37 As Garvin illustrates, allowing employees to access social media websites, such as Facebook, at work can have drastic consequences for employers. While many employers have written policies restricting employees access to these websites, the better course of action, and one many employers may ultimately choose to implement, is to block employees access to such sites altogether. Indeed, at least one court has concluded that blocking its employees access to Facebook in response to a sexual harassment complaint was sufficient to absolve the employer of liability Donna Ballman, Is Your Boss Reading Your ?, AOL Jobs, at (May 11, 2011). 33 Donna Ballman, Nine ways your employer may be legally spying on you, Financial Post: Business Insider, at (Aug. 7, 2013). 34 Id. 35 Id. 36 Id. 37 Id. 38 See Amira-Jabbar v. Travel Servs., 726 F. Supp. 2d 77, (D.P.R. 2010) 11

12 CONCLUSION While new technology presents exciting new opportunities for employees and employers, it also presents new concerns about which each party should be aware. In order to effectively represent their clients interests, attorneys who practice in this area must stay apprised of the ever-changing digital landscape. It is important for employees to know their rights, and for employers to know how to protect those rights from being violated. Due to the oftentimes glacial pace of litigation, however, it is inevitable that technology will evolve faster than the law, which will provide ample opportunities for the savvy litigator. // v.1 12

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