E-MAIL, CYBERPORN, AND EMPLOYER LIABILITY

Heather L. Gatley

Media and Communications attorney

Steel Hector & Davis

Title VII in General

Title VII of the Civil Rights Act of 1964, as amended in 1972 and 1991, prohibits discrimination on the basis of race, color, religion, sex, or national origin in the workplace. 42 U.S.C. §2000e-2 (1995). Employees who believe that they have experienced discrimination in a workplace containing more than fifteen employees have the ability to sue under Title VII to recover money damages from their employers. Juries have been awarding multi-million dollar judgments against employers at an alarming rate. ¹

The Courts have recognized two types of sexual harassment, that are actionable under Title VII: (1) quid pro quo harassment; and (2) harassment that creates a hostile work environment. ² Quid pro quo is the Latin equivalent of "something for something." Sexual harassment in the form of a hostile work environment is far more difficult to recognize and, consequently, more difficult to eradicate.

Hostile work environment harassment exists when conduct, either of a sexual nature or aimed atone because of their sex , has either the purpose or effect of unreasonably interfering with another's work performance or creating an intimidating or offensive working environment. Behaviors must be both pervasive and unwelcome. ³ Unlike quid pro quo harassment, which is perpetrated by persons in positions of power, a hostile working environment may be created and perpetuated by persons other than supervisors, such as co-workers, subordinates, or even third parties. ⁴ The general trend in the courts today is that, except for an absolutely egregious situation such as the sexual assault of an employee by a supervisor, the company will be liable for allowing a hostile work environment to exist only if it knew or should have known of the harassment and failed to take prompt and appropriate remedial action. ⁵ Title VII liability, although certainly not the only type of potential employer liability, can arise through both employee web site accessing and, believe it or not, employee E-mail use.

Sex Related Internet Sites

Given recent statistics reflecting routine employee access to sites devoted to the discussion or dissemination of sexual material, the potential for employer embarrassment, and more significantly, employer liability is apparent. ⁶ Employees accessing sex-related sites leave a potentially embarrassing "trail" to the company, exposing the company to potential liability for hostile environment sexual harassment. If you think your employees are not at least "visiting" these sites, think again.

While there is little precedent at the moment for holding a company liable for the sexual harassment of a co-worker arising out of Internet activities, it is only a matter of time. Sexually explicit material downloaded from a web site, whether it is displayed on one's computer in the form of a screen saver, placed in one's work area, or forwarded to others, is no different than displaying a sexually explicit "pin-up" and may, likewise, be perceived as harassing. Of course, downloaded written materials as well as pictures can offend. There are proactive steps, however, that a company can and should take to minimize the potential for disaster without turning its back on developing technology.

Set up a firewall

A "firewall" is a program or set of programs that enables a company to track, restrict or altogether block Internet access. Firewalls range from simple programs available at local computer stores for under $50 to complex matrices of programs designed to fit a network's specifications. In essence, firewall programs can be programmed to block specified Internet sites or chat lines that an employer doesn't want their employees visiting. More complex programs can serve as the computer system's gatekeeper, monitoring what is brought into the computer environment as well as guarding against inappropriate transmissions. ⁷ A company is entitled to control its own hardware and thus, the implementation of firewalls, while potentially detrimental to employee morale, is certainly well within the employer's prerogative.

Create company policy and discuss

Unfortunately, firewalls do not guarantee that employees will not access "sex sites" because they can only block known sites. Employees can still access the new sites appearing every minute. Therefore, employers may choose to establish a strict policy that prohibits use of the Internet for receiving and/or transmitting any language that the employee could not do in person or that is otherwise prohibited by federal, state, or local law. A formal policy, mandating proper use of the Internet in peril of disciplinary action, demonstrates the company's commitment to eradicating sexual harassment from the workplace. As with general harassment policies, however, policies "on paper only" provide little employer protection. To give the policy bite, Internet use can be monitored, either through supervisors or computer programs designed to track Internet use. Monitoring programs can also be configured to provide a warning message to an employee who is in violation of the policy.

The policy terms, penalties for violations, and the methods of enforcement should be discussed with employees so that there is no misunderstanding as to its contents. Employees should be encouraged to report improper conduct to their supervisors or the company's human resources department. Additionally, and as with more traditional forms of harassment, once on notice, the employer must act promptly and effectively to eradicate the problem. A strongly-worded policy, coupled with an effective, internally-publicized grievance procedure, should assist in preventing employer liability.

Ideally, companies should follow a two-pronged program to help shield the company from liability arising from abuse of the Internet: Set up a firewall and formulate and implement a zero-tolerance program for improper Internet use . At the very least, a policy must be implemented that sets forth appropriate uses of the Internet during company time (what is appropriate will vary from employer to employer) and its terms should be vigilantly enforced. Remember, implementing a policy after a complaint has been lodged may very well be too late.

Employee E-Mail

E-mail is the method of communications for the 90's, most employers, understandably, do not wish to limit employee use to exclusively work-related matters. ⁸ Absent a "work only" policy, however, employees need to be cautioned to "think" before they "send." Many employees, even those who recognize the dangers associated with a less than appropriate E-mail, operate under the misconception that a push of the "delete" button will eliminate all traces of their indiscretion. However, backups to messages are made in almost all E-mail systems, and therefore harmful, perhaps even disastrous, E-mails may remain on the company's system for months!

Not only can E-mail be an avenue to harass, defame or discriminate against others, ⁹ E-mail messages can provide smoking gun evidence of wrongdoing in litigation unrelated to the E-mail itself. Even if E-mail is firm-wide only (part of a LAN system), it frequently comes back to haunt the employer in subsequent employment litigation. Messages expressing a company's concern about a possible wrongful termination suit, as they build a case for firing an employee, can be later introduced as evidence in the subsequent suit by the employee. In fact, attorneys today routinely seek E-mail evidence of wrongdoing. Why? Because they know that E-mail provides its users with a feeling of privacy. They know that while a written internal memorandum may be well-considered, an E-mail message is usually sent off with only as much thought as is required to execute the keystroke.

Employer E-Mail Policies and Access

The Electronic Communications Privacy Act expressly limits its prohibitions on disclosure without consent to those offering electronic communications services to the public. ¹⁰ This provision allows the employer to set the rules for what is to be private and public. Detailing a list of specific and exclusive situations in which an E-mail may be accessed is not, however, advisable. Employers should not put themselves in a position where they are defending their decision to access E-mail in a situation not predicted and essentially defending their decision to invade the privacy rights that they initially provided to their employees.

Instead, employees should be explicitly told that they have no E-mail privacy rights in the workplace and that their mail can be read if the employer deems it necessary. Seee.g. , Smyth v. Pillsbury Co. , 1996 WL 32892 (E.D. Penn. Jan. 23, 1996) (court held that Smyth had no privacy interests in his E-mail communications). Further, this policy could be made to display upon log-in, thereby circumventing claims that the policy wasn't sufficiently published. A "click to accept these terms" configuration can assist the employer in the event of a later invasion of privacy claim as well. Most importantly, employers should establish an explicit written procedure for accessing E-mail and follow it religiously in the event that access must be had. Employers must be careful assigning passwords and access numbers because this adds a difficult twist to the analysis.

What about the effect on employee morale and autonomy? If the policy states that the company's electronic communications tools are considered company assets and that these assets may be accessed by company representatives, employee morale should be unaffected. Although it is tempting to draft an employee-minded policy, with a reservation of access rights qualified to encompass only certain specified circumstances, this serves only to place the burden on the company to justify an intrusion and is not likely to make the employees feel any better in any event.

Whether employees are perusing sites on the Internet or communicating within the company or beyond, the employer's interest is the same: minimizing the risk of expensive and damaging litigation. Proactivity in regulating employee use of this new technology can protect this important interest while allowing for maximum exploitation of new and fascinating resources.

MIA9510/104175-1

1	See e.g., Weeks v. Baker & McKenzie , No. 943043 (Cal. Super. Ct. Sept. 1, 1994). ($7.2 million damage award)
2	Dockter v. Rudolf Wolff Futures, Inc ., 913 F.2d 456 (7th Cir. 1990).
3	Henson v. Dundee , 682 F.2d 897 (11th Cir. 1982) "Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run the gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets."); Meritor Savings Bank v. Vinson , 106 S.Ct. 2399 (1986) (Title VII addresses more than simply economic or tangible discrimination; one may establish a violation of Title VII by proving discrimination based on sex has created an abusive working environment.); Lehmann v. Toys 'R' Us, Inc. , 626 A.2d 445 (N.J. 1993) (The key issue in sexual harassment claims is whether the discrimination/harassment occurs because of the victim's sex the conduct need not be sexual in nature); Stacks v. Southwestern Bell Yellow Pages, Inc. , 27 F.3d 1316 (8th Cir. 1994); Ott v. Perk Development Corp. , 846 F.Supp. 266 (W.D.N.Y. 1994); Harris v. Forklift Systems, Inc. , 114 S.Ct. 367 (1993) (Title VII held to not require concrete psychological injury for a working environment to be abusive. Rather, whether an environment is abusive depends on all the circumstances); King v. Hillen , 21 F.3d 1572 (Fed. Cir. 1994); Saxton v. American Tel. & Tel. Co. , 10 F.3d 526 (7th Cir. 1993); Dey v. Colt Const. & Development Co. , 28 F.3d 1446 (7th Cir. 1994) (plaintiff need not show that the harassment interfered with her/his work performance to establish a Title VII violation).
4	Powell v. Las Vegas Hilton Corp. , 841 F.Supp. 1024 (D.Nev. 1992) ( employer could be liable for the sexual harassment of employees by non-employees, including its customers).
5	Baker v. Weyerhaeuser Co. , 903 F.2d 1342 (10th Cir. 1990) (an employer who knows of previous harassment by co-worker against another female employee, is informed of present harassment, but fails to report complaint to management according to company policy and fails to take any corrective steps is liable for acts of co-worker); Hall v. Gus Construction Co. , 842 F.2d 1010 (8th Cir. 1988) (employer liable for co-worker harassment since foreman had actual and constructive knowledge and did not take action); Stingley v. State of Arizona , 796 F.Supp. 424 (D.Ariz. 1992) (an employer is liable for the conduct of its employees which creates a hostile environment if it knows or should have known of the improper conduct by plaintiff's co-workers); Kauffman v. Allied Signal, Inc., Autolite Div. , 970 F.2d 178 (6th Cir.) ( cert. denied , 506 U.S. 1041 (1992).
6	See Trip Gabriel, New Issue at Work: On-Line Sex Sites , The New York Times , June 27, 1996 at B1.
7	See Jeffrey Rothfeder, Hacked , P.C. World, Nov. 1996, Vol. 14; p. 170; Business Can Reduce Potential Liability From Sexual Employee Productivity With New Software , P.R. Newswire , Sept. 28, 1995.
8	According to the Electronic Messaging Association, the estimated number of E-mail users was to exceed 20 million by 1995.
9	Chevron Corporation settled a case for $2.2 million by female employees alleging they were sexually harassed via E-mail.
10	Electronic Communications Privacy Act of 1986, 18 U.S.C. §§2510, et seq.