District Attorney’s Sexting Is a Lesson for Employers

Kenneth Kratz, district attorney of Calumet County, Wisconsin, sent 30 text messages to a 26-year-old domestic-abuse victim.  Odd choice of medium, one might say, for an attorney to communicate with a witness.  I can’t say that I generally communicate with clients or witnesses via text message.  But that may be because I tend to communicate with clients and witnesses about case-related issues–and do so in a professional context.  Not Mr. Kratz. text alert

DA Kratz is reported to have sent these text messages in an attempt to solicit her for a romantic relationship.  In other words, he “sexted” her.  The content of the messages are salacious and, well, obnoxious.  For example, he wrote in one message, “Are you the kind of girl that likes secret contact with an older married elected DA … the riskier the better?” 

Remember, he is sending these messages to a woman whose ex-boyfriend he was also prosecuting on charges that the ex-boyfriend nearly choked her to death.

Katz did not deny sending the message but, instead, defended himself, saying that the state’s disciplinary board had cleared him of any misconduct.  He is reported as being angry that the “non-news story” of his sexting worried him because of its potential effect on his “reputational interests.”  

The story came to light after Katz failed to take the witness’ lack of interest seriously, leading her to report the messages to the police.  The police department released the messages to the media at the request of the Associated Press. 

[H/T Sharon Nelson, Ride the Lightning]

So, what are some of the numerous lessons for employers to learn from this story?  (Read on after the jump to find out)

First, don’t employ creepy people.  Not that Mr. Katz is creepy–I have never met him and certainly cannot purport to conclude his character from the news media.  That being said, it’s bad for business to employ creeps, jerks, or, as Stanford management professor and author, Bob Sutton, calls them, “assholes.”  I have to wonder whether Mr. Katz exhibited any behavior in the workplace that would have signaled that sexting was part of his repertoire.

Which brings me to the second lesson–when there’s reason to suspect a problem in the workplace, such as potential harassment (including “sexting” by and among employees), employers have a duty to investigate.  This means now.  Not later.  Not next month.  Not next time the Board meets.  It means now.  If you don’t investigate immediately, you cannot later claim that you did your part in stopping any bad conduct that was occurring.  Which means you can’t claim the most valuable legal defense in a harassment suit.

Third, if you don’t have a comprehensive policy on electronic communications that is easily understood and that has been communicated to everyone in the workplace–shame on you.  Get one now.  Don’t buy into this nonsense about “only prudes have policies.” 

Although we’d love to believe that “people should know better” than to send inappropriate e-mails or text messages, you ought to know better than to believe they really do.  The stories are too numerous to believe that people don’t do dumb things, make bad decisions, or have significant judgment lapses.   They do.  Frequently. 

So, instead of taking the glass-house approach and throw stones at those who end up in the news, take the more legally defensible course of action and actually write and initiate a policy that tells employees not to do these things.  Then educate them and encourage discussion, such as sharing stories like this, so employees have it on their radars.

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