HR Compliance: Sexting – New Name, Old Game

What do Chris Brown and Rihanna, Congressman Mark Foley, former Mayor Kwame Kilpatrick and Ex-Miss California Carrie Prejean all have in common?  Sexting has impacted their lives.

Sexting is sending erotic messages or images via cell phone, whether it is to a recipient or posting them on the Internet.  Anyone with a cell phone can potentially sext.  Images and messages are distributed easily and instantly to a large body of people, making private interchanges public information.

In the workplace, sexting presents a new form of sexual harassment.  Workplace romance can present a distraction to all team members, reduce worker productivity, and create possible sexual harassment issues.  Some businesses have chosen to bypass these issues by restricting cell phone usage during business hours.  Workplace policies have been amended to adjust for misuses of these new technologies, including consequences of these abuses, such as potential job loss.

Sexting can also have legal ramifications.  Some states have been proactive in creating sexting laws.  Illinois House Bill 2537 enforces fines on those sharing nude photos without consent.  In Texas, electronic harassment or intimidation is a Class A misdemeanor or third-degree felony.

Use Protection

Since there is no such thing as safe sexting, employers must protect themselves and their employees from this new form of sexual harassment.  Employers must be proactive and not wait until an incident occurs.  Consider the following:

• Review and update your policies.  Policies need to be broad and clear enough to prohibit inappropriate texting, emailing, instant messaging, tweeting, etc.  Policies should address the investigation and removal of evidence, including applicable legal violations.  Additionally, policies should address how to gather evidence and file a complaint should an employee receive a sext.
• Involve technology and legal departments.  The technology department is best equipped to identify evidence of deviant behavior on the computer system.  Likewise, legal authorities can assist in developing a protocol for investigating sexting while avoiding potential criminal or civil liability.
• Educate.  Everyone in your company should know the policies regarding sexting and sexual harassment.  All staff should be warned as to potential liability of engaging in, receiving, or distributing sexually explicit images or messages.  Staff should also be aware of how to report if they are being harassed. If you haven’t conducted harassment training in a while, now is a great time for a review.

The Past Doesn’t Stay in the Past

Employees have a responsibility to be smart when it comes to electronic communication.  Employees should stop and consider the following before they send text messages:

• Don’t text what you wouldn’t say in person.  Electronic messages can be misinterpreted.  A harmless compliment can be misperceived as offensive or lewd.  For example, “You look awfully perky today,” can be interpreted as a comment on someone’s physique rather than their mood.
• Speak out.  If you receive an inappropriate message you should report it to your supervisor or human resource department as soon as possible.  Talking about it or sharing the material with co-workers can make you liable for distribution of sexually inappropriate material.
• Text messages are traceable.  Text messages create a permanent legal record.  Phone companies record the dates and times when messages are received and sent.  Even old or deleted messages may be recovered as evidence.
• Sexting can cost you your job.  Violations of sexting on the job can result in disciplinary action or loss of employment.  Additionally, in certain states sexting laws include fines and/or jail time.

Sexting exacts a long-term mental and emotional price that temporary pleasure cannot pay.  Sexting impacts individuals in the present, but due to the electronic format, can be resurrected years down the road to continually do damage.  Though it’s a new name, sexual harassment is an old game that no workplace employer or employee needs to play.

Submitted by: By Aiesha C. Skinner, M.A., Spalding doctoral candidate and guest blogger for IntegrityHR, Inc.