In the last decade, many employers have updated their discrimination, harassment, and retaliation policies to cover issues involving e-mail. Employers in the restaurant industry are by no means immune from the need to do so as well. The new challenge is to develop and implement policies that address text messaging in the workplace. Text messaging can lead to serious employment issues, including discrimination, harassment, and retaliation claims.

Employers increasingly are facing situations where employees send inappropriate messages to each other via text. So-called “textual harassment” can be more challenging for employers than other methods of harassment. First of all, it is more difficult for the employer to discover the problem unless someone complains, as opposed to harassing words or actions that can be observed by supervisors or other employees. Second, employees sometimes send text messages that they would not say in a face-to-face conversation or even e-mail, such as texting lewd photographs and requests for inappropriate favors. A supervisor who might never call an employee or send an e-mail late at night or after a few drinks might send an inappropriate text message. Third, text messages leave behind an electronic record, making them easily traceable, which creates a growing source of liability for employers as workplace texting continues to proliferate.

The permanent nature of an electronic record can, however, sometimes work in the employer’s favor. For example, in the U.S. District Court case of Enriquez v. U.S. Cellular Corp., an employee sued her employer for sexual harassment based on a text message she received from her supervisor. She claimed that the texts, which contained inappropriate images of cartoon characters, were offensive and degrading. The employer, however, was able to produce text messages that the employee had sent to coworkers in which she forwarded the images and stated that she did not find them offensive. This discovery led to summary judgment for the employer.  

In another “textual harassment” U.S. District Court case, Kurtts v. Chiropractic Strategies Group, a receptionist at a chiropractic clinic complained that her supervisor, a doctor at the clinic, exposed her to a hostile work environment by sending her sexually explicit text messages and subjecting her to repeated attempts at physical contact. The employee complained to the clinic administrator, after which she quit her job. The District Court ruled that the chiropractor had, indeed, subjected the receptionist to unwelcome sexual harassment that was “sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” It also ruled that the receptionist suffered a constructive discharge. Nevertheless, the Court granted summary judgment for the employer because there was a sexual harassment policy in place to prevent and promptly correct sexual harassment, and the receptionist unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The most important steps employers can take to meet the challenges of text messaging in the workplace and avoid liability are to adopt sound text-messaging policies and enforce their policies diligently.

Even though the employers prevailed in Enriquez and Kurtts, the decisions emphasize the importance of implementing text-messaging policies in the workplace to avoid harassment. Like other employers, those in the restaurant industry can help prevent textual harassment and defend against harassment claims involving text messaging by creating a specific text-messaging policy, along with their discrimination, harassment, and other policies.

Employers also should take all complaints of textual harassment seriously and investigate them in accordance with their anti-harassment policy. Preliminarily, employers should consider whether the textual harassment occurred during work hours or using company property. Employers generally are not expected to be responsible for employees' off-duty or off-premises conduct, especially when text messages are completely unconnected to the workplace. However, even if the purported harassment is completely off-duty and sent with noncompany property, employers should examine whether the conduct, or its effects, have affected the workplace, similar to an investigation of a complaint of off-duty harassment that interferes with an employee's work environment. Furthermore, even if the harassing texts were sent off-duty and off-premises, the victim might have received and viewed the offensive text messages during her work hours or on a company phone.

Employers should be wary of incurring liability for retaliation claims if they discipline an employee for texting coworkers about harassment. Text messaging is a quick and easy way for an employee to complain about offensive behavior to several coworkers at the same time. Employers should stress the importance of confidentiality in their text messaging policies to help prevent employees from spreading information about alleged harassment to employees who are not involved.

In short, employers should make it clear in their policies that harassment will not be tolerated and is unlawful however it is communicated—whether through text message, e-mail, spoken word, or other means. The most important steps employers can take to meet the challenges of text messaging in the workplace and avoid liability are to adopt sound text-messaging policies, provide regular training on those and other policies, and enforce their policies diligently. Otherwise, like other employers, those in the restaurant industry might find themselves devoting unnecessary time and resources to complaints of inappropriate conduct and claims arising from inappropriate text messaging.

Coauthors Daniel A. Kaufman (Partner) and Sarah E. Flotte (Associate) are with Michael Best & Friedrich. They can be reached at and
Employee Management, Story