Where ‘omg, u look gr8’ can land you in court

By Kiri Blakeley

updated 7:14 a.m. ET Aug. 11, 2009

When her hotel room phone rang at 2 a.m., Megan McFeely assumed it was an emergency. Maybe a friend or family member was hurt or in trouble. Worried, she sleepily picked it up, only to hear a male coworker on the other end. Not a superior, he was someone with "definitely more power than I had," urging her to come back down to the hotel bar. It was obvious he was drunk.

"I was astounded," says McFeely, who was in New York with several colleagues for a work conference. "He asked me what I was doing in bed, why wasn't I down there partying with them." McFeely told the man she needed to get some sleep and hung up the phone. But the call continued to weigh on her. "When you're not the one in power, and someone does something like that, you just feel unsafe."

Welcome to the new sexual harassment. It's (usually) not about the stuff you see on Mad Men, and it's not chasing the secretary around the desk. "It's rare now that somebody in the office says, 'Sleep with me or you're fired,'" says David Bowman, a labor and employment partner at the Philadelphia office of Morgan, Lewis & Bockius. "Now it's about managers being very flirtatious at the holiday party. It's about getting drunk together at happy hour and something inappropriate being said or done. People are now aware that certain things are not acceptable, but they still stumble over the subtle areas."

Those subtle areas can include everything from flirtation at a company party to a complimentary text message or an unwelcome invitation to discuss the latest project over dinner or drinks. "There's been a new generation of confusion in this area," says Jay Zweig, an employment lawyer with Bryan Cave in Phoenix.

More from Forbes.com Click links below for slideshows What message is your perfume sending?  Bad moods at work Eight essential items in a perfect wardrobe 10 Ten office beauty do's and don'ts What not to wear at work

"Twenty years ago, it was, 'Sleep with me if you want the promotion.' Now most sexual harassment claims have to do with a hostile work environment, someone saying, 'This person is bothering me. I can't do my work. I'm distracted and uncomfortable.'"

Much of the problem is that newer technology — e-mail, IM, texting or posting on social-networking sites — makes it much easier for comments to be misconstrued on many levels. Says Bowman: "When you talk in person, 80 percent of what you say is in your tone and body language. With technology, all of that is gone." If you admire an employee's new haircut while she is in your office, she can read your tone and body language; and you can read hers. However, a late-night text message admiring your employee's new haircut can take on a lascivious tone, even if that is not the intention.

A 27-year-old professional woman tells the story of how one of her superiors, a flirty married man with children, who, after overhearing a previous comment she'd made to a female co-worker about buying a new dress, sent her a late- night e-mail from his personal account, telling her he couldn't wait to see her in the dress.

"I'm sure you will look amazing in it," he wrote. The woman responded that she didn't appreciate him sending an e-mail like that to her work account, and he claimed it was a mistake and "half-apologized." Later, he sent her an IM that she feels was "completely inappropriate." She remembers telling her co-workers she would have to block him.

MORE FROM FORBES

Forbes Section Front

World's most expensive homes Will Ferrell is Hollywood's most overpaid star Dirtiest vehicles on America’s highways The worlds most powerful people The key to dealing with lousy boss: negotiation IRS rules for medical deductions are sickening Tailgate much? These are the rides you need What automakers have in store for 2010 Top-earning dead celebrity? Not Jackson Need to fire someone? Here’s what to do Forbes Section Front