Employers have a duty to investigate and take appropriate remedial action if an employee complains that another employee texted inappropriate pictures or messages, even if those text messages were sent after regular work hours.

Both federal and state anti-discrimination laws define sexual harassment as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature which unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive working environment. Even if the alleged harassing conduct took place after hours or outside the workplace, it may constitute the grounds for a sexual harassment claim against the employer if the conduct was severe or persuasive and was reasonably known by the employer or involved a supervisor, owner, or someone who’s deemed to be within “upper management.”

Employers must establish policies and procedures to potentially limit their liability if one of its employees sends an inappropriate text message. The first step is education. Each year, employers should provide training to all employees. That training should include:

• an explanation of the anti-discrimination laws;
• examples of conduct which could violate the company’s anti-discrimination policies and procedures;
• that all employees, including witnesses, supervisors, and the alleged victims of discrimination must report alleged violations;
• provide instructions on how to report alleged discriminatory activities, with multiple options to encourage reporting;
• an explanation of the company’s anti-retaliation policies protecting anyone who brings an issue to the company’s attention and protects all witnesses who provide information in furtherance of the same; and
• an explanation of what will and might occur if the company is made aware of any alleged discrimination in violation of its policies.

In addition, should an employee bring to management’s attention any alleged discrimination the company has a duty to investigate the claims, take affirmative remedial steps to address it (including potential termination), and protect any witnesses or complainants from retaliation. Hence, if an employee complains that they received inappropriate text messages from a co-worker or supervisor, whether during or after business hours, the employer must conduct an investigation and take steps to address the situation. Failure to do so, could expose the employer to monetary and reputational damages.