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When inappropriate texts aren't harassment

Colleen Bowling had what looked like a slam-dunk sexual harassment case. A co-worker had sent her a series of text messages that included sexually explicit questions and inquiries into her sex life. She sued and lost the case. The details of this case shed light on the not-always-clear criteria for what constitutes sexual harassment.

What happened

Bowling was hired as a police officer f0r the Department of Veterans Affairs. Lieutenant Quinn Bennett was assigned to train her. Sometime after the training began, the two began exchanging text messages. These quickly evolved into a mix of work-related and sexual messages. Bowling claims Bennett began prying into inappropriate areas.

The two traveled to a shooting range as part of the training. However, this trip violated the Veteran's Affair's policies because it inappropriately used government property.

After this trip, Bennett's wife found out about the text messages and sent Bowling "an explicit and profane threatening text message." Bowling confided in a co-worker. The co-worker talked with Bennett. Afterward, the co-worker assured Bowling that everything was taken care of and that Bennett would no longer text her.

Later, Bowling's supervisor told her that she wasn't allowed to use her personal cell phone at work. Because she thought this was related to the Bennett situation, Bowling spilled the entire story. The supervisor launched an investigation, and as a result, discovered the trip to the shooting range that violated departmental policy. As a result of this, Bowling was fired. She claims her superiors knew about the trip prior to the investigation. So, she sued, claiming she had been sexually harassed and treated unfairly.

What the court said

Event though Bennett was training Bowling, and therefore had some power over her, the court rejected the idea that she had been sexually harassed. Why? Because Bowling said she wasn't offended by the sexual message. In fact, she said she thought it was something normal people do. The court wrote:

Plaintiff [Bowling] has failed to show that she had any belief that her employer was engaging in severe or pervasive sexual harassment when the complaint was made, let alone a reasonable, good faith belief. Even assuming Bennett was Plaintiff's supervisor and could thus expose Defendant to liability, it is clear that Plaintiff did not take offense to the comments until after Bennett's wife sent a threatening text message, which coincidentally marked the end of all personal messages.

So, even if most people see sexually explicit text messages as inappropriate, the fact that Bennett did not means she can't win her sexual harassment case.

What this means for the rest of us

Sexual harassment has this weird standard: Instead of any hard and fast rule, it all depends on the perceptions of the people involved. If you're not offended, it's not harassment. Additionally, even if you are offended, it's not harassment unless a "reasonable person" would also see it as harassment.

If Bob says, "Nice dress," and you take that as harassment, it's not illegal unless you can prove that reasonable people see a compliment about an outfit as harassment.

However, employers need to still be careful and enforce rules regarding all sexual content/interactions in the workplace. Employment Attorney Eric B. Meyer says:

When I conduct respect-in-the-workplace training for employees and supervisors, I often use a case like this as an example as a reason not to engage in such behavior. That is, two people may engage in conduct that neither find offensive at the time. However, circumstances may change (e.g., a falling out, a termination). And those changed circumstances may lead to one of the two participants (conveniently) reconsidering whether the conduct offended them.

If Bennett had lied and said she had found the text messages offensive but had been concerned for her career because Bowling was her trainer, it would have been difficult to prove otherwise. For this reason, wise companies have strict policies against relationships between people who have any authority over each other.

Employment Attorney Donna Ballman, who finds reason to be concerned about this ruling, says:

So many women go along with inappropriate text messages and other behavior because they don't want to be seen as complainers. Then, when they try to bring a sexual harassment claim, the employer claims they weren't offended. This is a good example of just how difficult we make it for sexual harassment victims to bring claims. The "she asked for it" defense is alive and well.

With today's social media recording so much of our lives, you may find your Facebook posts torn apart in an attempt to show that you weren't offended by the sexually charged environment at your place of employment. It may not sound fair, but that's where things stand now.

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