Sexting and Textual Harassment

When Texting at Work Becomes Sexual Harassment In New York

For many New Yorkers, the distinction between our personal and professional relationships have blurred. Exchanging personal cell-phones numbers with supervisors and co-workers has become the new normal, and that is no surprise. Being able to text the people you work with can be a necessity, whether it be for exchanging work-related information, coordinating who is picking up the morning coffee, or organizing the annual Christmas party. Unfortunately that ease of smartphone communication is a double-edged sword – it is easier than ever to be sexually harassed by a supervisor or co-worker.

What is Sextual & Textual Harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”)?

Textual harassment is simply a term used to describe sexual harassment by text. More generally, sexual harassment in the workplace involves unwelcome sexual advances or conduct that negatively affects your employment. Under federal and New York law, there are two main categories of sexual harassment: (1) quid pro quo harassment; and (2) hostile work environment harassment.

Quid pro quo harassment takes place when a supervisor threatens to harm or promises a benefit in exchange for sexual compliance.

Hostile work environment harassment occurs when a supervisor, co-employee, or third party (e.g., a regular client), engages in conduct that is so severe or pervasive as to alter the employee’s working conditions or create an abusive work environment. Under this category, not every incident of harassment is enough to be actionable; instead, no Title VII violation occurs unless the level of harassment meets the “severe or pervasive” threshold.

How Much Textual Harassment must occur to meet the “severe or pervasive” threshold?

There is no mathematically precise test to determine whether harassing incidents create a hostile work environment. Fortunately, the courts have provided some guidance for determining if the harassment was “awful enough”:

• In determining if the level of harassment meets the “severe or pervasive” threshold, courts will look at the circumstances surrounding the harassment. Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002).
• Factors to consider in determining whether a hostile work environment exists include: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. (Schiano v Quality Payroll Sys., 445 F3d 597, 605 [2d Cir 2006]).
• While a mild, isolated incident does not make a work environment hostile, the test is whether “the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse. (Whidbee v Garzarelli Food Specialties, Inc., 223 F3d 62, 70 [2d Cir 2000]).
• Even where multiple actions are not individually sufficient to create a hostile environment, “an accumulation of seemingly minor incidents” may combine to satisfy the standard. (Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002)).

In practice, one sexually harassing text on its own may not be actionable. However, the cumulative effect of multiple incidents, such as many harassing texts, may amount to an injury that is greater than the sum of its parts.

New York City and State Offers More Protection

If, at this point, you are questioning whether you experienced actionable sexual harassment, don’t be discouraged. The New York City Human Rights Law (NYCHRL) does not require a showing that the alleged harassment is “severe” or “pervasive.” Instead, it only requires an employee to show that his/her employer treated them less well than similarly situated employees, at least in part for discriminatory reasons.

Don’t live in New York City? The New York State Legislature passed bills at the end of its 2019 session lowering the standard for plaintiffs to prove unlawful harassment. Before this change, employees had to show that harassment altered the conditions of their employment under a “severe or pervasive” standard, similar to federal law.

If you believe you have been sexually harassed at work, contact our office so we can review your evidence and outline actionable steps to protect your legal rights.