In some ways, harassment cases are easier to substantiate these days, thanks to social media, texting and other forms of electronic communications.
That isn’t necessarily a good thing – there continues to be inappropriate communications in the workplace – but text communications and other forms of written evidence make the job of the investigator much easier.
For example, the Ohio Lottery announced earlier this year that its director, Pat McDonald, would be leaving after an investigation into alleged inappropriate misconduct. According to reports, the investigation found that McDonald resigned after he allegedly engaged in appropriate touching and communications with other employees. He allegedly expressed inappropriate fondness and innuendo in those communications.
For example, he allegedly texted a female employee to tell her she was “hot” and a “gift from God” while also using the heart, winking face and eggplant emoji (which carries male anatomy connotations).
In today’s world, there can be confusion on the message being sent with different images, emoji and acronyms.
In one case, an employee was confused when a colleague sent him the acronym “LOL” after his mom died. He believed it meant “laugh out loud”; the colleague understood it to mean “lots of love.”
During the pandemic, when an employee asked her manager what masks to wear, the manager sent her an image of a masochistic mask, adding, “How about this?”
Another manager on Easter Sunday sent his leadership team an inappropriate gif of an Easter bunny engaging in sexually inappropriate movements.
This is the reality of 2023.
I had one participant in a training say that her employee was offended when she sent the “thumbs up” emoji.
In 2021, an article in in The Wall Street Journal, “Sending Smiley Emojis? They Now Mean Different Things to Different People,” detailed how the Gen Z generation adopted new meanings, while “older people” stuck with traditions, causing “a lot of confusing interactions.”
The workplace has become a 24/7 operation, where off-duty conduct can impact an employee’s “9 to 5” job. The after-hours interactions with co-workers are sometimes referred to as the “extended workplace.” Whether on social media or in electronic communications, these communications with colleagues after hours can bleed into the workplace.
Employers should update their harassment policies and code of conduct to make clear about electronic communications and after-hours communications and how those behaviors could affect the workplace and a person’s career.
Although this feels like a 2023 issue, way back in 2015, AT&T reportedly fired executive Aaron Slator after it was hit with a $100 million race discrimination lawsuit after a revelation that he sent a friend a meme from his work phone that had a Black child dancing with a statement featuring a racist slur.
Post-pandemic, where people have fewer boundaries and are more familiar in communications, these issues are only getting worse.
Employers should also explain to employees and managers in training that certain behaviors are not acceptable, even if the colleagues are friends. The workplace relationship has a host of rules and laws that govern the legality and appropriateness of communications.
My advice is, before sending a text at 11 p.m. or a meme, or posting on social media, ask first, “Am I sober?” If the answer is no, stop all communication.
Furthermore, consider how this communication would be viewed outside the context in which you are sending it. Intent to harass is not the test. The question of if you get to keep your job will depend on whether the communication was welcome, whether a reasonable person would find it offensive and whether the person found it offensive. For legal recourse, there will be other considerations, such as whether the conduct was severe or pervasive and whether the company had notice for co-worker harassment.
Things are funny until they aren’t, and then they’re not. Things are consensual until they aren’t, and then they’re not. A person never has to tell a person to stop or that the conduct is unwelcome before it can be considered harassment.
Act accordingly. None of this is worth the end of your career.