E-Mail Abuse Can Leave Firms Exposed To Sexual Harassment Claims

By Lisa M. Bee and Gerald L. Maatman Jr.

The vice president of human resources of an insurance brokerage firm in Florida called the EPL hotline regarding employee complaints of e-mail messages.

Several employees complained that they had received sexually suggestive e-mails from colleagues after the firms holiday party. The employees initially complained to their colleagues, who attributed the conduct to “horseplay, fun and stress-busting.”

Subsequently, a few employees also objected to what they characterized as “pornographic” images they had seen on various computer screens in common workspaces. These were generated by e-mail messages from outside the company and circulated among several workers.

The brokerage firm is a growing business with more than 250 employees. All the employees except top managers are “at will” employees without employment contracts. The company does not have an information system policy, although it has an extensive discrimination/harassment policy and complaint procedure. On an increasing basis, much of its internal and external communications take place over the Internet.

The hotline call raises issues inherent in the new digital and technological workplace. E-mail harassment and pornographic spam are increasingly common fixtures in the American workplace. The complaints asserted by the brokerage firms employees raise multiple issues for the company and its human resources department.

In certain circumstances, e-mail transmissions can constitute hostile environment sexual harassment. While an e-mail message is not a “verbal statement” uttered by an alleged harasser face-to-face to the alleged victim, it nonetheless can cross the legal line and constitute actionable sexual harassment if the e-mail transmissions are severe and pervasive and adversely impact an employees work environment.

Risk management and loss control counsels that such problems need to be nipped in the bud to promote a respectful workplace and to avoid sexual harassment exposures.

Accordingly, the employee complaints in question should be treated like any other complaint of sexual harassment under the firms discrimination/harassment policy.

The vice president of human resources should begin an immediate investigation pursuant to the companys protocol for dealing with and resolving an internal employee complaint.

The complaints also underscore the problems in the intersection of digital technology and employment law exposures.

Even if the e-mail transmissions in question do not in and of themselves rise to the level of actionable sexual harassment, the existence of these e-mail transmissions can come back to haunt the company in other employment discrimination litigation contexts.

This is because hitting the “delete” button and deleting the offending e-mail transmissions does not eliminate the electronic footprints left by such conduct. Sophisticated plaintiffs lawyers now seek discovery of electronic messages when litigating employment discrimination lawsuits against corporations.

E-mails, even after their deletion, leave a “meta data” trail revealing attachments, dates and times of edits and transmissions, file size, conversation threads, and document file paths. These attributes ensure that any inappropriate behavior conducted via an employers digital technology will leave a permanent record.

Implications in the litigation context mean that this hunt for e-mail often centers on the e-mail files of supervisors and managers. A favorite theme of plaintiff lawyers is that the company failed to take appropriate steps to rid the workplace of discriminatory and harassing conduct of which it was aware. Or even worse, that it ratified such conduct by doing nothing.

To combat this problem, any company using e-mail should protect itself through a comprehensive information systems policy that not only defines and sets parameters on appropriate use of digital technology, but also cross-references the companys discrimination/harassment prohibitions to the use of digital technology.

This will be a companys initial defense to the increasingly common tactic of plaintiff lawyers who hunt for inappropriate e-mail transmissions in the hopes of raising the stakes in employment discrimination litigation. Thus, the company should consider adopting a comprehensive information systems policy.

Finally, one of the most important decisions to be made by the HR department is in determining what to do in terms of disciplining employees responsible for the inappropriate e-mail transmissions.

At the very least, strong warnings should be issued to employees using digital technology to circulate inappropriate and/or pornographic materials. Since all of the employees in question are “at will” employees, the company has the legal right to terminate any individual if the circumstances suggest an outright dismissal is appropriate.

Since managers are appropriately held to a higher standard of behavior, the company should consider whether supervisory personnel who participated or acquiesced in this behavior should be disciplined more harshly than line employees.

Lisa Bee is director of employment practices liability risk management for Lexington Insurance Company in Boston. Gerald L. Maatman is a partner with Seyfarth Shaw in Chicago.

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, January 23, 2004. Copyright 2004 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.

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E-Mail Abuse Can Leave Firms Exposed To Sexual Harassment Claims

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