Old Claims with a New Twist: E-Harassment in the Workplace
By Douglas M. Towns
The vast majority of companies today conduct at least some of their
business over electronic systems. Furthermore, many companies carry
out portions of their business via an intranet or the Internet.
Other companies grant access to the Internet to some, if not all,
employees. The ease with which these systems allow employees to
communicate with each other and with the outside world presents
obvious business advantages. Unfortunately, employers now realize
that the advantages gained by these technologies bring with them
the risk of a new wave of harassment claims based on the alleged
misuse of these modes of communication. Notably, the claims are
not limited to high-tech companies. Any employer that uses technology,
including more traditional "old economy" companies, can
fall victim to such claims. In order to reduce these claims, or
at least attempt to minimize exposure to such claims, employers
will have to adjust to meet the new dynamics of a changing workplace.
E-mail and Internet Use at Work
Use of e-mail and the Internet at the workplace has become both
a reality and a necessity in today's marketplace. The efficiency
and ease of sending e-mails and the vast market potential of e-commerce
have propelled many companies into a technological environment.
Use of the Internet at work has also dramatically increased over
the past several years.
By far, the vast majority of computer-related communications take
the form of electronic mail. Obviously, e-mail is quicker than traditional
written correspondence because it is sent and received almost instantly.
The ability to copy and forward messages also allows individuals
working in groups to quickly update each other on new developments.
Some companies also now allow some employees to telecommute or otherwise
work outside of the traditional office environment. In such situations,
there is little direct personal interaction and e-mail is often
the primary source of communication. Even if housed in the same
office, many companies are seeing a shift from face-to-face communication
to electronic interaction. Instead of walking down the hall, employees
are working together over e-mail or a company-provided intranet.
Indeed, e-mail may become, if not already, more common than the
traditional inter-office (hard copy) memo.
Although e-mail is used primarily to communicate thoughts and ideas,
in many respects, it is very different than verbal conversation.
The virtual distance created by communication via e-mail lends anonymity—or
at least a detachment—to these communications. People may
"say" in e-mail what they would never have said in person
or even in writing. Even more potentially devastating is the fact
that, in the world of e-mail, "delete" often does not
mean delete. Potentially damaging messages often remain on tape
back-ups or the hard drives of senders and recipients. Finally,
the ability to copy and forward e-mails also means that messages
can be sent to or viewed by unintended recipients.
Traditional Sexual Harassment Analysis
Although not specifically mentioned in the statute, the U.S. Supreme
Court long ago held that sexual harassment is prohibited by Title
VII of the Civil Rights Act of 1964. In Meritor Savings Bank
v. Vinson, the United States Supreme Court recognized two categories
of sexual harassment prohibited under Title VII. Quid pro quo
harassment occurs when an employee is threatened with adverse employment
action if the employee does not submit to unwelcomed sexual conduct.
Similarly, quid pro quo harassment occurs when a favorable
employment decision is contingent on the employee’s acceptance
of such conduct. Such claims can be predicated on explicit promises
or threats such as when a supervisor tells a subordinate, “If
you sleep with me, you get a raise” or, “If you don’t
sleep with me, you’re fired” or more subtle forms of
coercion.
On the other hand, sexual harassment can also be based on an alleged
hostile work environment. As the Supreme Court recognized in Vinson,
such claims arise where unwelcomed sexual conduct is "sufficiently
severe or pervasive [as] to alter the conditions of the victim's
employment and create a hostile work environment." In general,
claims for hostile work environment are often based on alleged sexual
comments, sexual jokes or physical touching. However, courts have
seen a myriad of such claims based on a variety of allegedly inappropriate
conduct such as: comments about an employee’s anatomy, dress
or behavior; dirty jokes; sexual innuendo; inquiries into a person’s
sex life; derogatory nicknames; posting of sexual photos or calendars
in an office space; the passing around of explicit jokes, notes
or materials; display of sexual or obscene objects; suggestive body
language or gestures; touching, patting, fondling, pinching, kissing
and hugging; and neck and back massages.
When the Supreme Court first recognized that sexual harassment
is prohibited by Title VII, the potential for creating a "virtual"
hostile work environment with offensive e-mails and Internet misuse
could not have been envisioned. The law in this area evolved based
on more personal, one-on-one forms of interaction. The advent of
e-mail and the Internet has added an entirely new dimension to this
area of employment law.
Developing Law of E-Harassment
As the need and demand for increased technology at the workplace
continues to grow, incidents of e-harassment are likely to increase
as well. While pin-up posters and bikini calendars have been hopefully
removed from office walls, the computer screen may become the next
medium for such sexual images. Merely by way of example, in April
2002, six Washington State Labor Department employees were terminated
for excessive use of state-provided computers for personal e-mail,
including e-mail of a sexual nature. One fired employee had sent
650 personal e-mail messages in less than one month. The agency's
termination letter to this employee described some of his e-mail
as "shockingly explicit, vulgar and very offensive." Recent
years have seen many examples of other companies confronting alleged
harassment from explicit e-mails and Internet use. This
list is but a snap-shot of recent examples—clearly,
no business, whether a Fortune 500 or small technology company,
is immune.
Practical Steps Employees Can Take to Protect Themselves
Although there is no way to completely insulate a company from sexual
harassment lawsuits, there are steps that employers can take to
minimize their potential risk.
1) Adopt an anti-harassment policy -
The first step to preventing sexual harassment is developing an
anti-harassment policy. The policy should require employees to report
the alleged harassment immediately. Companies should consider including
a short list of managers to whom alleged harassment should be reported.
The policy should explicitly provide that the employee does not
need to report the conduct to the alleged harasser but can use an
alternative reporting mechanism. The policy should provide that
the employee will not be retaliated against for making a report
of allegedly inappropriate conduct. Finally, the policy should explicitly
mention inappropriate or sexual e-mails as an example of prohibited
conduct.
2) Institute training programs - Perhaps
one of the most effective steps to minimize these claims is to train
the workforce on harassment. Training that is designed to highlight
the potential dangers of e-harassment also provides an opportunity
to further reinforce the importance of the company's anti-harassment
policy and how to report suspected incidents. Training would also
be wise for managers. Managerial training could cover the harassment
law, their reporting obligations and how to investigate such claims.
Interestingly, the digital revolution now has its own contributions
in the area of sexual harassment education. As an example, several
companies offer a web-based program of sexual harassment training
that tracks and records for clients which of its employees have
used and completed its program.
3) Consider e-mail policies - Companies
should take steps to ensure that their e-mail systems are being
used for appropriate purposes. Most companies will want to limit
use of this technology to business purposes. By doing so, employers
will have minimized the risk of "dirty" jokes, stories
or pictures or any material that is defamatory, profane, vulgar,
sexual, racial or otherwise discriminatory. Employees should be
notified that all technology, including e-mail, is provided by the
company to assist employees in carrying out the business purpose
of the company. Explicitly state that employees who use company
property, including e-mail, for personal use or in violation of
company policy against discrimination and harassment are subject
to discipline.
4) Develop internet policies - When employees
are permitted to access Internet sites, provide strict guidelines
regarding its use. Like e-mail, employers should take steps to define
appropriate Internet usage. A company must also determine the penalties
for specific policy violations, communicate them to employees and
then enforce them consistently.
5) Reserve the right to review and monitor
- Employees should be notified that the employer will treat all
messages sent, received or stored in the e-mail system as business
messages, which the company is entitled to review, monitor and disclose.
The company should warn employees that if they make incidental use
of the e-mail system to transmit personal messages, such messages
will be treated no differently from other messages; that is, the
company still reserves the right to access, review, monitor or disclose
such messages. The policy should explicitly state that employees
should not use company e-mail to send or receive any messages that
they wish to remain private. Include that by using the company's
electronic communications systems, the employee is aware of and
will be covered by the policy. In addition, by using the e-mail
system, the employee expressly consents to the reviewing and monitoring
of e-mail messages outlined in the policy. The above protections
should also be applied to Internet usage at work.
Conclusion
Harassment, including sexual harassment, continues to be an issue
for all employers. Certainly, employers have become more aware of
the risks involved and have in many cases taken great steps to reduce
the occurrence of harassing behavior. Nevertheless, it is a continuing
hazard and one that will exist in the future. Employers should take
reasonable steps to ensure that e-mail and the Internet remain a
benign business tool rather than a vehicle for harassment. Continued
training of management and employees, as well as implementation
and development of guidelines and policies, will aid employers in
their goal of a harassment-free work environment.
Douglas M. Towns practices labor and employment law as a partner
at Jones, Day, Reavis & Pogue in Atlanta. His experience includes
representation of high-tech and other companies in Title VII, ADA
and other employment matters, and he has written and lectured on
issues relating to technology and the workplace. He is licensed
to practice law in the state of Georgia. He can be reached at douglas_towns@jonesday.com.
This article originally appeared at GigaLaw.com.
It can be found at http://www.gigalaw.com/articles/2003-all/towns-2003-03-all.html.
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