We are all familiar with sexual harassment as a subject matter for workplace investigations.  In a post Bill 168 world, psychological harassment investigations are also becoming common.   However, with an increasingly wired workforce dependent on electronic communication, we are in a new era in which employees are becoming victim to “textual harassment”.  In our firm, we are seeing a distinct rise in these cases.

Unfamiliar with the term?  It is becoming common south of the border.  The objectionable workplace behaviour is not touching or grabbing, but forms of electronic communication such as emails, text messages, instant messages and even comments posted on social media. There are now a number of Canadian cases which show how textual harassment in the workplace occurs.  A good example is the recent B.C. Human Rights Tribunal decision, McIntosh v. Metro Aluminium Products and Sbigniew Augustynowic.Here, an employee complained that after ending a consensual sexual relationship with her supervisor, he sent her a stream of unwanted sexually charged text messages over a three month period.  These messages included, “any horny girlfriends” and “this is your boy toy” and “can I date your daughter” amongst other things.  The employee told the supervisor verbally and through text that the messages were unwelcome, but he persisted nonetheless.

The employee experienced severe stress, and eventually left the workplace.  The Tribunal concluded that the text messages constituted sexual harassment and awarded the employee $30,000 in damages.

From a workplace investigation perspective, textual harassment cases can be challenging.  Because the electronic communication is often in the form of texting or instant messages, the messages themselves may be lost as employees tend to delete them quickly.  As a result, the best evidence may be the employee’s recollection of what was sent, as opposed to the actual message.

Second, it is sometimes difficult to establish who actually sent or posted the message.  We have investigated a number of cases where employees meddle with each other’s computers and electronic devices and purport to send messages as someone other than themselves.

Third, not all employers are technologically equipped to track these messages.  They may need IT help to support the investigation.  This can be expensive.

Finally, given the ability for electronic messages to be widely broadcast, the damages to the victim of these messages can be staggering in terms of lost reputation and the creation of a poisoned work environment.  Careers can literally be ruined.  This presents challenges in terms of what remedial steps an employer can take once the investigation is over.  Employers may need to prepare themselves for a completely new way of calculating damages when textual harassment is at play, and these damages may greatly exceed what we have all come to expect from more traditional type harassment cases.

Janice Rubin