The Scourge of Electronic Harassment

The world is changing.  New technologies allow more people to work from home and less people to travel for business.  Most business communication is now electronic. Electronic communication has made the workplace far more productive and efficient. However the convenience of electronic communication has resulted in far greater legal risk for organizations and their employees.

A single piece of electronic communication can travel to multiple offices and be seen by thousands of people, exponentially increasing the legal exposure for organizations. It’s critical that every employee understands that their electronic behavior is subject to the same laws and organizational policies as their behavior in the office and in face to face communication. Offensive behavior is always unacceptable regardless of the delivery method. If a remark is offensive in person, it’s offensive when delivered electronically.

What Constitutes Electronic Harassment?

Electronic harassment is the use of computers, cell phones, or other electronic devices to threaten, embarrass, intimidate, harass, or humiliate co-workers or other persons in the workplace.

Hostile Work Environment

When electronic harassment is used to target members of a protected group and creates a hostile work environment, it can become illegal. Hostile Environment harassment occurs when a pattern of offensive conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive working environment.

The federal government protects employees from harassment and discrimination based on race, color, national origin, religion, disability, family status (including marital status and pregnancy), sex (including sexual orientation, gender identity and transgender status), age (40 and over) and genetic information.

In addition, local laws and organizational policies prohibit the harassment of many other groups of employees.

The courts use the “Reasonable Person Standard” when determining if offensive conduct is illegal.  In other words, would a reasonable person find the behavior severe enough to create a hostile work environment? The law only looks at the perception of the victim.  The perpetrator’s intent is irrelevant in court.

Quid Pro Quo

Quid Pro Quo harassment occurs when a manager or supervisor withholds or awards job benefits on the basis of sexual favors. Quid pro quo harassment can also occur electronically.  For instance, a manager cannot withhold or award job benefits in an effort to force employees to send inappropriate pictures or engage in sexting.

Additionally, employees may not be made to endure harassment as a condition of employment. For instance, a manager cannot tell salespeople that they will have to put up with degrading jokes and pictures sent to them electronically because this behavior is commonplace in sales departments. 

Just one incidence of Quid Pro Quo harassment is illegal. It's also illegal to harass co-workers because they are perceived to be members of a protected group, even if they aren't actually members of that group. For instance, it's illegal to harass a co-worker for being Jewish, even if she isn't actually Jewish.

Additionally, it's illegal to harass employees because of their association with members of a protected group. For instance, it's illegal to harass an employee because of his wife's nationality. Electronic harassment can occur between peers or between a manager and a subordinate employee.

The law covers harassment between employees and non-employees such as unpaid interns or independent contractors. Additionally, harassment can be perpetrated by third-parties like vendors and customers. Harassment can occur anywhere that employees represent their organizations.  This could be in a hotel room, at a trade show, on a sales call, or even at home from a personal device.

Examples of Electronic Harassment

The following are examples of electronic harassment that may create a hostile work environment and therefore leave employers potentially liable.

• Sending harassing messages via social media platforms, such as Twitter, Facebook, and Instagram.
• Posting pictures, videos, or messages that depict co-workers negatively.
• Cyberstalking by obsessively following a co-worker on their social media networks and blogs.
• Sending harassing, intimidating, sexually explicit or inappropriate text messages or photos by text, email or instant messaging.
• Sharing secrets about victims with other employees such as their search for another job or their sexuality.
• Damaging a co-worker’s computer by sending viruses by e-mail.
• Encouraging others to harass a victim by falsely claiming the person has harmed them or their family.
• Threatening to release harmful information about victims to blackmail them.
• Impersonating co-workers, business associates, managers, or company executives to post or send inflammatory comments.
• Posing as the target to express interest in sex on dating sites, social media, or through electronic communications.
• Harassing a co-worker during a live chat, conference call or video meeting.
• Sending or posting hateful speech that attacks a specific aspect of the target’s identity, such as race, ethnicity, religion, or gender identity.
• Message bombing or intentionally flooding phone or email accounts to limit or block access to a co-worker’s devices.
• Sending or posting private, sexually explicit images or videos of co-workers or business associates.
• Damaging a co-worker’s reputation by posting false information online, such as, fictitious criminal records or lies about sexually transmitted diseases.

• Use strong, random passwords and log out of all accounts when not in use.
• Keep all devices secured, password protected and locked when not in use.  This applies whether working in the office, off-site, or at home.
  Think carefully before posting on social media.  Only comments, photos, or messages that do not violate company policies are acceptable, even posts on personal accounts from personal devices could be seen by co-workers or business associates.
• Make sure that all communication sent via text, email or instant messaging does not violate company policy or break local, state, or federal laws.
• Promptly notify managers or supervisors about inappropriate behavior by following organizational reporting procedures.