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"Textual Harassment" & the Emoji

Circa mid 1960's. The "pre-feminist era work environment" has a very distinct appearance. Men in dark suits dominate the workplace. We have all seen the backdrops on Mad Men...a man gripping a Marlboro between his fingers while carefully using the same hand to sip his Scotch. Meeting rooms filled with smoke, alcohol and presentations. Bosses chasing the secretaries around the desk. In that era, sexual harassment was not only accepted, it was encouraged.

Flash-forward to 2015. Men and women are roaming the halls equally. Roles are reversed...the seasoned female executive ordering her younger male assistant to get her a latte. Never before has the work environment been more diverse. In this previously male-dominated arena, women now hold more prominent roles. Supervisors, Managers, Executives and Corporate Officers are called "Ms.", as well as "Mister." Sexual harassment is no longer accepted, however it does still occur.

Equally, technology has changed during this time. Men, women and children all walk around with mini computers in their hands, capable of communicating through multiple vessels simultaneously. With these advancements in technology, the workplace has expanded into our lives. Co-workers can communicate 24/7 via email, cell phone, video conferencing, social-media and yes...TEXTING. These communication tentacles may now dangerously reach further than ever before, engaging in newer forms of sexual harassment. One of these forms is referred to as, "Textual Harassment."

The term "textual harassment" was first found in Mary Jacobus, 'Is There a Woman in This Text?' New Literary History 14 (Fall 1982): 117-41. It is commonly used today as a way to describe sexual harassment using text messages. As we step even deeper into this realm of communication, we will find the "Emoji" or "Emoticon."

Shigetaka Kurita is credited for the creation of the Emoji, or, "small digital images or icons used to express an idea, emotion, etc., in electronic communication." Since their creation at the end of the 20th century, few could have predicted that Emoji's would come into play in cases of textual harassment.

Textual harassment can happen anywhere, at any time. However, in the workplace, these electronic records become crucial evidence in pursuing a claim. The permanent nature of an electronic record can also, at times work in the employer's favor. In the U.S. District Court case of Enriquez v. U.S. Cellular Corp., an employee sued her employer for sexual harassment based on a text message she received from her supervisor. She claimed that the texts, which contained inappropriate images of cartoon characters, were offensive and degrading. The employer, however, was able to produce text messages that the employee had sent to coworkers in which she forwarded the images and stated that she did not find them offensive. This discovery led to summary judgment for the employer.

In another "textual harassment" U.S. District Court case, Kurtts v. Chiropractic Strategies Group, a receptionist at a chiropractic clinic complained that her supervisor, a doctor at the clinic, exposed her to a hostile work environment by sending her sexually explicit text messages and subjecting her to repeated attempts at physical contact. The employee complained to the clinic administrator, after which she quit her job. The District Court ruled that the chiropractor had, indeed, subjected the receptionist to unwelcome sexual harassment that was "sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment." It also ruled that the receptionist suffered a constructive discharge. Nevertheless, the Court granted summary judgment for the employer because there was a sexual harassment policy in place to prevent and promptly correct sexual harassment, and the receptionist unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

With texting and cyber-harassment rising, 37 states have enacted cyber-harassment laws. Tennessee, Texas, Utah and Washington targettexting in addition to e-mails, blogs, the Internet and other electronic communication, according to the National Conference of State Legislatures. A 2009 U.S. Department of Justice study on harassment showed 23 percent of victims in 2006 reported that some form of technology, including texting and e-mails, was used to harass them.

Additionally, public figures have become poster-children of this recent movement into "sexting" and textual harassment. Anthony Weiner, a United States Congressman accused of tweeting his private parts, Brett Favre, a former professional football player accused of sending sexual texts to a game day hostess, Tiger Woods, a professional golfer accused of sending sexual texts to various paramours, and Ken Kratz, a D.A. who admitted to sending over 30 sexually explicit text messages to a domestic abuse victim.

When everyone has accessibility to these technologies, everyone becomes a possible victim. In the event you feel you are being textually harassed, reach out to Cole Law group for answers. Remember, this is not 1965.

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