“Textual Harassment”: New Employer Risk From Text Messages, Email and Internet Communications

Avoiding, Investigating and Defending Employee Race, Sex and Disability Claims

Supreme Court will review employer access to employee text messages

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, January 19, 2010

Recorded event now available

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Course Materials

This CLE course will discuss emerging trends in so-called textual harassment claims, including legal challenges facing employers as they investigate and litigate such cases. The panel will outline best practices to minimize liability for harassment claims based on internet and text messaging.

Description

Advances in digital technology increase workplace productivity, but also give employees a new channel for harassing co-workers and subordinates. Lawsuits alleging discriminatory harassment via the Internet, email and text messages are on the rise, creating a serious new concern for employers.

In light of this trend, employers must develop and enforce clear policies governing such communications. Employers and counsel must also initiate new systems to monitor employee use, immediately address any reported harassment, and develop defenses to lawsuits alleging electronic harassment.

Investigating and litigating “textual harassment” claims also involves delicate employee privacy concerns and complex discovery and evidentiary issues. Companies can face millions of dollars in expenses, settlement costs and legal fees for failing to appropriately respond to harassment claims.

Listen as our panel of employment law attorneys explains how counsel for employers are responding to textual harassment cases, including the legal challenges involved in investigating and litigating such cases and best practices to minimize liability for harassment claims.

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Outline

  1. Textual harassment
    1. Common legal claims
    2. Litigation trends
  2. Legal issues raised in harassment investigations and litigation
    1. Employer monitoring vs. employee privacy
    2. Discovery issues
    3. Evidentiary issues
  3. Strategies to minimize liability for harassment claims
    1. Develop and implement comprehensive electronic communications policies
    2. Investigating claims
      1. Criteria for an effective investigation
      2. Planning the investigation—attorney-client privilege, confidentiality issues
      3. Documenting the investigation
    3. Litigation strategies
      1. Faragher-Ellerth affirmative defense
      2. Dispositive motions

Benefits

The panel will review these and other key questions:

  • How has the rapid increase in the use of text messages and email by workers created new liability risks for employers?
  • How can employers balance the need to monitor employee use of digital devices for improper use with employee privacy rights?
  • What common mistakes do employers make in investigating claims of harassment via technology and how can they be avoided?
  • What legal challenges do employment litigators face when defending harassment cases based on text messages, email or the Internet?

Faculty

Eric L. Barnum
Eric L. Barnum
Partner
Schiff Hardin

He is an experienced trial lawyer practicing in all areas of employment law and litigation, including wrongful...  |  Read More

Clint D. Robison
Clint D. Robison
Partner
Hinshaw & Culbertson

He handles all aspects of employment litigation and advice, including wage and hour matters, discrimination claims,...  |  Read More

Todd A. Smith
Todd A. Smith
Mediator and Attorney
The Law Office of Todd A. Smith

He serves as a mediator in litigated and non-litigated matters, with an emphasis on employment disputes. He also...  |  Read More

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