The line between work and non-work has blurred considerably since the advent of the Internet, personal computers and handheld electronic devices. While employees once worked primarily in the office during business hours, “technologies [now] allow us to slip some work into almost any time slot, regardless of when it is, where we may be located at the time, or what activities are competing with a demand for work.”1 This fundamental shift in the way we work is changing the nature of hostile work environment claims; plaintiffs are now seeking to impose liability on their employers for discriminatory electronic communications made over personal mediums and outside of typical working hours.
A case exemplifying this issue is currently pending in the Bronx County Supreme Court.2 There, a female police officer has asserted a hostile work environment claim against the City of New York based on, among other things, explicit text messages and photos that a male lieutenant sent to her personal cell phone while she was off-duty. There have not yet been any decisions in this case addressing whether liability may be imputed to the city for these off-duty messages. However, other courts that have analyzed the issue have focused on one primary inquiry: Do the offsite messages and/or their consequences have a sufficient nexus to the workplace? If the answer is yes, and the other elements of the claim are satisfied, liability may be imputed to the employer.
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