The Double-Edged Sword of Technology: Text Messages and Social Online Networks Offer A New Source of Evidence for Plaintiffs in Discrimination and Harassment Lawsuits

October 2009

Brian Lim, Associate, Downey Brand LLP

Technology is a mixed blessing for employers. On the one hand, advances in computer hardware and software can improve an employer’s ability to maintain complete and accurate employee records. However, on the other hand, employees and their lawyers have increasingly found technology to be a goldmine for damaging evidence that can be used against an employer in a discrimination or harassment claim. Although electronic evidence has been used against employers in civil litigation for over a decade ? coinciding with the boom of the Internet Era ? employees are no longer limiting their evidence search to e-mail archives and computer hard drives. Today, cellular phone text messages and online social networks have provided employees with arguably the richest source of documentation for candid, and at times inappropriate, communications between themselves and their co-workers.

“Textual Harassment”
In January 2009, two women received a $495,000 settlement from the Ohio Attorney General’s Office for creating an alleged hostile work environment. The two women claimed that over the course of several months, they were the subjects of repeated sexual harassment from a supervisor in the Attorney General’s Office. The women introduced damaging evidence contained in text messages sent from their phones. In one text, one of the women described being placed in a “weird situation,” from an event that occurred at the Attorney General’s home. In a similar, but unrelated case, two students sued a university’s coach for allegedly manipulating them into engaging in sexual relations with him. The coach claimed that it was the two students who had made sexual advances on him. However, text messages sent from his phone to the students told a different story ? he had sent the students several inappropriate text messages that clearly indicated that he had been the instigator of the improper relationships. As a result, the university had to pay a $450,000 settlement to the two women.

Text messages need not be as egregious and suggestive as the preceding examples in order for them to be valuable to an employee’s discrimination or harassment claim ? the text message could be nothing more than a joke passed on from one employee to the another. However, what is humorous to one individual may be extremely offensive to another, and that casual “joke” could potentially create a hostile work environment.

Like e-mails, text messages leave behind electronic records which can be accessed long after the user “deletes” the text message from his/her phone. Perhaps because text messagers see texting as more discreet than e-mails and other mediums of communication, lawyers have found text messages to contain a higher degree of candid and casual language which can often create the most damaging type of communications from the employer’s standpoint.

The value of text messages in discrimination and harassment claims is by no means one-sided. Employers too may be able to use text messages to protect themselves in civil litigation. For instance, if the employer terminates an employee because he/she harassed other coworkers via text messages, or sent text messages in violation of clear company policies, but the employee turns around and sues the employer for discrimination ? the employer may be able to use text messages sent from the employee’s phone to strengthen its defense. However, an employer’s ability to access and review the content of text messages on an employee’s phone can be restrained by privacy issues. The privacy concerns are compounded when the employee sends texts through his/her private cell phone, as opposed to one issued by the company. As a result, Employers should be careful not to rely too heavily on the possible availability of text messages for their defense.

Online Social Networks
Text messages are not the only modern-day service that is raising new challenges for employers. The popularity of the online social networks Facebook, Twitter, and LinkedIn, appears to be growing at an exponential rate. These services permit users to post online profiles of themselves which contain the user’s name, address, occupation, and place of work. The services also permit users to post comments on other users’ profiles.

Although several social networks offer more casual settings, some websites ? like LinkedIn ? target professionals and are aimed at career development. On LinkedIn, a user will post information that emulates the individual’s resumé. In addition, there is a section where the user’s co-workers and supervisors can include comments about the quality of the individual’s work. Because these comments are, for the most part, positive, plaintiff-side attorneys in discrimination cases have begun turning to these websites to acquire evidence refuting an employer’s argument that it terminated an individual’s employment for performance issues.

In addition to the problems associated with posting positive comments on an employee’s web profile, employers are also getting into trouble for relying on information contained in a prospective employee’s profile in determining whether or not to hire the applicant. Studies have shown that social networks are used by a large number of employers to conduct background checks on potential employees. In addition to valuable, legitimate information on a candidate (e.g., educational background, work experience, and potential references), social networks also contain information about the person’s age, race, gender, religion, and sexual orientation. Employers must be careful not to use any of the information contained in the latter categories to determine whether to hire an applicant.

Practical Advice for Employers
The role of electronic evidence in employment discrimination and harassment claims is an evolving field of law, and courts have not fully addressed the limits and relevance of this evidence. However, there are practical steps employers can undertake to protect against the potential risks of electronic evidence.

Text Messages :
It is key that employers educate their employees, especially managers and supervisors, of the dangers and consequences of inappropriate text messages. Employers may want to request their harassment training providers to give additional instruction on harassment through text messages. Similarly, employers should update their anti-harassment policies to expressly state that inappropriate text messages will not be tolerated and may lead to an employee’s termination.

To the extent possible, employers may also want to monitor any text messages sent between employees to ensure they are appropriate for work. As discussed above, employers may have difficulty gaining access to an employee’s text messages. However, employers can take steps to diminish, or even eliminate this privacy right. For example, if employers issue cellular phones to their employees, the employer can circumvent any expectation of privacy an employee has to his/her text messages on the phone by creating a policy that clearly informs the employee that any communications sent through company property will be monitored and are not private. In the alternative, if the employer does not provide the phone, but pays for the text messaging service, the employer can format a policy providing the employee grant the employer access to their text messages in exchange for the service.

Online Social Networks:
As with text messages, educating employees about the need to exercise good judgment and discretion on online social networks is critical for employers. Employees must realize that even positive commendations and recommendations left on a coworkers webpage can be used against the employer. Therefore, an employer and its employees are best served if they limit any postings to online profiles to generic information (e.g., dates of employment and job title). Any commendations and/or recommendations should be reserved for written performance evaluations, subject to company policy, so that the employer can consistently monitor, record, and account for any employee reviews.

Employers should also consider restricting, or outright eliminating, their employees’ access to online social networks while at work. Employers can do so by turning off internet access or using software to block certain sites. Similarly, an employer can issue written policies prohibiting the use of online social networks while at work.

In addition, employers must be careful when using social networks to perform background checks on potential applicants. Although valuable information can be obtained from these websites, the user’s profile may contain information about his/her age, race, gender, religion, and sexual orientation. An employer must be careful not to use any of those characteristics in determining whether to make an offer of employment.

Please note that the information contained in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.