When is “Sexting” Sexual Harassment?

When is “Sexting” Sexual Harassment?

Is offsite and after hours texting between work friends sexual harassment?

That was the question in a recent California case. A pharmacist filed a sexual harassment lawsuit against her former employer, Rite Aid. Her lawsuit stemmed from an offsite and after hours text exchange she had with a district manager in which the manager sent lewd photographs to her. The pharmacist and the manager knew each other and were friends before she started working at Rite Aid. Rite Aid and the manager brought a summary judgment motion. The trial court granted summary judgment in favor of Rite Aid on the pharmacist's claims. The pharmacist appealed.

Background

The Rite Aid district manager and the pharmacist met in the early fall of 2017 when she did her six-week school rotation with the manager. They developed a social relationship and became close friends. They were friends before the pharmacist started working at Rite Aid. The pharmacist also viewed the manager as a mentor.

The two texted frequently about all kinds of things, including travel and vacations, exercise, weight loss, food, restaurants, getting together for meals, religious observances, family and relatives, their respective spouses, pets, social media, drinking and alcohol, birthdays, fashion, and work issues. They exchanged hundreds of texts. They would go out for coffee and meet up for lunch. In December 2018, the manager and his wife joined the pharmacist and her husband (and another couple) for dinner to celebrate the pharmacist's birthday.

Texts about various work-related topics were interspersed with texts about personal topics, and all the text communication were on the manager's and the pharmacist's respective personal cell phones.

Notably, in an 11pm text one evening, the manager sent the pharmacist a lewd "Live Photo." He then sent another text stating, "Meant to send to wifey," followed by a text that said, "Going to go die." The next morning, the manager texted the pharmacist, "Wanted to apologize I was embarrassing drunk last night." The pharmacist did not respond.

Rite Aid fired the manager, and the pharmacist didn’t return to work. Her attorney sent a letter to Rite Aid asserting a claim of sexual harassment. Her counsel said he’d already obtained a right-to-sue letter and would be filing a complaint.

Rite Aid’s investigation showed that the manager admitted sending the pharmacist the lewd photo and video. He was given a copy of Rite Aid's anti-retaliation policy and placed on suspension. Rite Aid subsequently terminated the manager.

After the pharmacist received the separation notice, she didn’t communicate with anyone at Ride Aid to indicate she wanted to return to work. Rite Aid’s attorney said that the pharmacist would have been welcomed back at any time, but neither she nor her attorneys ever contacted Rite Aid to say she had any intention of returning to work.

The Pharmacist's Sexual Harassment Claims

The pharmacist alleged sexual harassment under the Fair Employment and Housing Act (FEHA). FEHA prohibits sexual harassment in the workplace. More specifically, FEHA makes it an "unlawful employment practice" for an employer to harass an employee because of the employee's "sex, gender, gender identity, gender expression, ... [or] sexual orientation."

A plaintiff in a sexual harassment suit must show the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex. The law says that it’s the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim.

Visual harassment may include derogatory posters, cartoons, or drawings on the basis of sex. The plaintiff must establish the offending conduct was imputable to [his or] her employer because under FEHA, an employer is strictly liable for harassment by a supervisor. However, an employer is only strictly liable under FEHA for harassment by a supervisor "if the supervisor is acting in the capacity of supervisor when the harassment occurs." An employer is not strictly liable for a supervisor's acts of harassment resulting from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.

Here, there was no dispute that the manager was a supervisor. With respect to summary judgment on the pharmacist's sexual harassment claims, the issue was whether the manager was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts, such that Rite Aid could properly be held strictly liable for that conduct.

The Trial Court's Ruling on the Sexual Harassment Claims

The trial court concluded the pharmacist failed to raise a triable issue of fact as to the required showing that the manager was acting in the capacity of a supervisor when he sent the inappropriate texts. The trial court granted Rite Aid's motion for summary judgment as to the pharmacist's sexual harassment claims against Rite Aid.

Judge M. Bruce Smith said that the Court of Appeals agreed with the trial court's conclusion that the pharmacist didn’t raise a triable issue of material fact with respect to the required showing that the manager was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts. Rather, as the trial court found, the manager and the pharmacist had "an extensive texting relationship" and their January 4, 2019 late-night text exchange, which "occurred outside the workplace and outside of work hours," was "spawned from a personal exchange that arose from a friendship between [them]." Summary judgment was therefore proper as to the pharmacist's sexual harassment claims, Judge Smith said

The pharmacist and the manager both stated in their depositions that they were close friends and that their friendship predated the pharmacist's taking a pharmacy intern position at Rite Aid and continued thereafter. The pharmacist candidly admitted in her declaration that her friendship with the manager developed before she ever worked at Rite Aid and that this preexisting relationship was wholly unconnected to her work at Rite Aid. As for the manager, he testified he thought the pharmacist was "one of [his] best friends."

Judge Smith found that had their relationship been strictly professional as the pharmacist states in her declaration, they wouldn’t have been texting after 11pm on a Friday night (as they did on January 4, 2019), in the first place. Their banter over texts that night—prior to the manager's texting of the inappropriate photos later in the exchange—was no different in tone and subject matter than loads of their other text exchanges as personal friends. Although the manager began the exchange by asking how the pharmacist's week at work went, that is, as the trial concluded, "a common inquiry for a friend." Even with the manager's inquiry into how the pharmacist's week at work went, their text exchange was highly personal.

The Court of Appeals concluded that Rite Aid met its burden to show there was no triable issue of material fact on the question whether the manager's texting of the inappropriate photos was work-related. Atalla v. Rite Aid Corp. (California Court of Appeal, 5th Appellate District, 2/34/23).

Bottom Line

California employers should note that sexual harassment concerning the texting of the inappropriate photos must be work-related. Personal communications after hours won’t rise to the level of sexual harassment.

Danielle G. Eanet can be reached at Eanet, PC in Los Angeles, CA at danielle@eanetpc.com.

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