If we needed to call our office when we first started investigating sexual harassment claims, we had to put a dime in a machine and our finger in this rotary thing and turn it 10 times. We also rarely had any tangible evidence to help us determine the credibility of the alleged victim or the accused—the classic she said/he said. Those were the good old days.

Today’s new-fangled machine for calling the office is also used to create boat-loads of evidence in sexual harassment and other kinds of cases. Just check out what Kelly, the hiring manager for a Subway franchisee in upstate New York, had on his menu for recruiting new employees. The following is Kelly’s exchange with a 17-year old applicant (“A.R.”), whose cell number he got from her application:

Kelly: Hi how badly do you need a job
A.R.:   Whos this?
Kelly: An employer
A.R.:   Where?
Kelly: In the mall
Kelly: Guess not
A.R.:   Ok where in the mall?
Kelly: Would you sleep with the manager to get the job?
A.R.:   Maybe if [I know] who this is
Kelly: Subway
Kelly: I’m looking for an asst. manager
A.R.:   Do u even know me?
Kelly: Bang my brains out the job is yours

Charming, right? A.R. refused the advance and did not get hired. The employer, upon learning of the exchange, did ultimately fire Kelly, but that was not enough to convince a judge to dismiss the case which was filed on A.R.’s behalf by the EEOC. In July, the judge ruled that the case will be decided by a jury. No pickles, no mustard, please.

No worries Kelly, you’re not the only one who thinks that texting employees or applicants is a great way to woo them. Earlier this year, a former Illinois legislative staffer, Alaina, filed an EEOC charge against Kevin, her frighteningly persistent boss. Kevin’s first move was as follows:

Kevin:  Could I ask you a question?
Alaina: Sure
Kevin:  So on your Facebook page I think there is a picture of you in a bikini
[This already has our hair on fire but it’s just the beginning]
Alaina: Yeah I was in Italy…
Kevin:  Do have any idea what I am going to say?
[How about Italy is so nice this time of year…but no!]
Aliana: I really don’t
Kevin: You are smoking hot!

And there it is. Two days later he asks her, by text, if she has a boyfriend. Eight days after that, he asks her out and she responds, I think we should maintain a professional relationship to which Kevin says, Can I ask why? Then,  when she ignores him, he follows up with: Can you please give a response. Kevin persists for several days and then this exchange:

Aliana: I have always seen you in a supervisor role. I don’t see you in that way.
Kevin:  What does that mean. You really don’t know me. I will not brag or flaunt. But I really am the best dude you will meet.

And right about then, Aliana is likely saying to herself, then I’d rather be alone dude.

The exchanges go on for several months and she becomes more definitive in her shutdowns, but Kevin persists.

Kevin:  So do you not find me attractive?
Aliana: I do not see you that way.
Kevin: Too old. I understand. Well if you ever change your mind let me know.

That’s right, Aliana, even though you did not mention his age, Kevin intends to become younger.

Even in debacles such as these, there are some valuable lessons. Employers must ensure that those who have supervisory authority understand the liability that they can create for the organization and themselves. We strongly recommend that managers be prohibited from texting with employees or applicants. Just because they’re called smartphones, does not mean that they edit the content of the message for the not-so-smart author. Sometimes, a short call on that smart phone is worth a thousand characters–and it sure is a lot harder to prove what was said. And please: NO FACEBOOK! Supervisors must be prohibited from friending or accepting friend requests from co-workers.

If anyone can think of a way to test for common sense, please let us know.