Fabricated Texts? Something Else for Employers to Be Aware Of…

By Fiona W. Ong - Shawe & Rosenthal LLP

January 18, 2018

I am a luddite (meaning that I fear technological change) and am wholly inept when it comes to my smartphone. I know it can do many marvelous things of which I am unaware – but apparently it has a darker side as well, as illustrated by a recent case, Lee v. Trees, Inc. In that case, the court threw out an employee’s Title VII lawsuit because she had submitted fabricated texts, supposedly from her supervisor, to support her claims of sexual harassment and retaliation.

The employee claimed that she and the supervisor had a consensual relationship, but that he threatened her job when she tried to break it off, and she was fired only days after she finally ended the relationship. She filed a charge of discrimination with the state fair practices agency (which employees are required to do before they can bring a lawsuit), and she submitted printed copies of the supposed texts to the agency during its investigation into her charge. Relying on these texts (despite the supervisor’s protests that the texts had been made up or modified), the agency ruled that there was evidence of a Title VII violation, and the employee then filed suit in federal court.

At this point, the employer hired a certified forensic computer expert to analyze the employee’s cell phone. The expert found that dozens of the text messages were in the phone’s “unsent” folder and were time-stamped almost a year after the alleged harassment occurred, which was also just before she submitted the printed copies of the text messages to the agency. The expert further found that other printed text message strings were not the actual conversations, but were cobbled together using only fragments of the real text messages from the supervisor along with the fake messages.

Now, I had no idea that you could create fake text messages. (Naive me, although, in my defense, I note that the state agency was also fooled). When counseling employers who are dealing with an employee’s complaints of harassment, I often ask them to check if there are text messages (or other social media communications) that support the employee’s position. But now employers should also be aware that any such text messages may not absolutely prove misconduct – in fact, the messages might be fake! If the accused wrongdoer says that the messages aren’t real, the employer should take additional steps to verify whether they are authentic!