E-Mail Harassment Suits

Employers who have installed electronic mail systems on computers in the workplace need to create and enforce policies for the use of e-mail or risk lawsuits that could result from someone's reckless disregard for the feelings of others, which in court could be deemed sexual harassment or racial discrimination carrying multi-million-dollar damages. Such was the case with a subsidiary of the Chevron Corporation, which recently settled a "hostile work environment" sexual harassment claim for $2.2 million that was brought in part based on an e-mail message that was circulated at the firm that listed reasons "why beer is better than women." E-mail also is at the heart of a racial discrimination lawsuit filed earlier this year against Morgan Stanley & Co. Inc. that seeks damages in excess of $60 million. The lawsuit filed by two black employes alleges co-workers circulated "vile, offensive" racial jokes through e-mail, and did so by misappropriating the password of another black employe as a "ghost" identity. And in a third case, a class action race discrimination lawsuit filed in February by two black employes of Citibank alleges white supervisors exchanged "vulgar and racially vile" messages through e-mail, one of which claimed to portray a letter from a Polish immigrant and another purporting to contain an "Ebonics" vocabulary test "replete with stereotyped diction." In the aforementioned cases, e-mail was introduced as evidence to illustrate a general environment of harassment or discrimination, backed by descriptions of other actions taken by company officials that could be considered harassment or discrimination, or by inaction that could be viewed as condoning such acts or creating a climate that allowed them to occur. "Even if the employer ultimately prevails in court, the cost of defending these types of actions can be significant," says Thomas N. Shorter, a labor and employment attorney at Davis & Kuelthau, S.C. "It is important that this area of communications be monitored by the employer and swift action taken when improper use is discovered." Had Miller Brewing exec Jerold Mackenzie, recently the victorious recipient of a $26 million jury award, chosen the e-mail format to update a female co-worker on developments concerning Jerry's failed efforts to recall his girlfriend's first name on the infamous episode of "Seinfeld," we might all be more informed on what constitutes misuse of the medium. Alas, Mackenzie spoke to her in person and to illustrate the punchline grabbed a handy, time-tested dictionary. Observers say e-mail, which has been available in most offices now for several years, poses a very real liability threat if its use is allowed to go unchecked. Some propose drastic measures be taken in the form of a written policy that among other measures could restrict e-mail use for business purposes only and impose a method of monitoring e-mail to make sure violations aren't occurring. Others feel monitoring e-mail and restricting its use for business purposes only are excessive. Under such a system the price of e-mail vigilance, they say, is the latest diminution of an employe's right to privacy. "I think one of the things that always stands out is a lot of people don't realize that when they send an e-mail not only are they creating an official record of any sort of comment they may be making, but also may expose the employer to liability for sexual harassment, racial discrimination," Shorter says as justification for imposing such a strident policy. Shorter's firm proposes that a written company e-mail policy should clearly define the limitations on employe use, stating that e-mail should be used for business purposes only, that e-mail messages are company property, that employes have no right to privacy in any messages, that the company may review and disclose all e-mail messages, and that employes must disclose their passwords. In addition, the policy specifically should cover areas of potential liability by stating that e-mail messages may not be offensive, discriminatory, or intended to frighten, intimidate, abuse or harass another person, as well as protecting business interests by stating they should not reveal trade secrets, proprietary financial information or infringe on copyrighted materials. Knowledge of violations, which could result in discipline or discharge, must be reported, according to the draft policy.Most observers agree that companies should have written e-mail policies, just as they provide written guidelines for long-distance telephone use, overtime, breaks and lunch hours, and other day-to-day aspects of operating a business. "My take on this is what I usually do -- I don't find it all bad or all good," says Carole Doeppers, director of the American Civil Liberties Union-backed Wisconsin Data Privacy Project in Madison. "It's good that they're drafting and publicizing work rules as it relates to e-mail, what the policy is so that everyone is on the same level playing field." But Doeppers and others object to the stipulation that employes should have no privacy rights concerning their e-mail. "I'm absolutely stunned that they would say no privacy whatsoever," says Doeppers. "I don't support that. But employes have few rights as it pertains to privacy in the workplace. I might not agree with that, but that's the reality." In the vast majority of cases, employers own the equipment that enables their employes to do their work -- desks, file cabinets, computers. An extension of that reasoning, reflected in the law, is that information contained within a computer is part of the computer and thus belongs to the employer. "I don't know about other industries but when they fire or lay off someone in the computer industry, he or she is walked to his or her office and allowed to pick up a few incidentals, and then he or she is taken out," says Lawrence H. Landweber, University of Wisconsin-Madison professor of computer science. "Anything that happens to be on the computer is not theirs. They have no property rights to it." The university, Landweber notes, grants a greater right to privacy for students than it does for faculty, whose computer files can be accessed by special ruling of the administration. Much of the case law as it pertains to privacy with e-mail is paralleling and being developed from laws involving workplace access to and monitoring of the telephone. "In certain circumstances, employers are allowed to monitor telephones, in industries where people work on the phone such as telemarketing, for example," says Shorter. "One of the things that's come down is that if you announce to employes that you're going to be monitoring their telephone conversations in work situations, you have in some cases destroyed their right to privacy. The e-mail policy, therefore, should say there is no right to privacy." Shorter recommends that employers have a "specific business purpose" in mind when they engage in monitoring e-mail. "I don't think you can have somebody sitting there reading every single e-mail," he says. "But you have to have the ability to monitor, to require periodic monitoring. If you say you're going to monitor and then you don't do it at all, you've almost over-ridden your policy. The employe can say it was nullified because it was never really enforced." Further along that line of reasoning, the stipulation that employes must disclose their passwords is designed to negate the assumption of privacy. "If you allow them to create a password that only they know, you may be almost giving them a right to privacy even if you say they don't have one," says Shorter. "Any technology guru might say they can get around it, but the average person believes it's a security measure that gives them a right to privacy. If you tell an employe that you will have access to his or her password, the immediate thought would be, 'Then my e-mail is not private.'"According to Rebecca Locketz, legal director for the ACLU Workplace Rights Project in Princeton, NJ, more and more employers are monitoring employe e-mail, indiscriminately, and using the information, much of it personal, to their advantage, making business decisions in part based on the information they gleaned, often to the employee's detriment. In one instance, an employer learned that a male employe was having a relationship with another male. The employer disapproved of that situation. "Even though the employe was a good employe, the employer fired that person. In effect, the employe was fired for behavior unrelated to his ability to do the job," says Locketz. "At this point an employe has very little recourse if an e-mail has been accessed," continues Locketz. "In order to win a privacy violation case, it would have to be a pretty shocking use of the information by the employer." As opposed to indiscriminate monitoring of e-mail, Locketz, and the ACLU, advise employers who contact the organization for its advice on the matter to remind their employes that sending messages that could be considered sexual harassment or racial discrimination is not tolerated, and that monitoring should be implemented only when it has been established that there is probable cause that a law, for example a civil rights law, has been violated. Under Wisconsin law, enacted in June 1996, it's a class B misdemeanor to send an electronic message that is intended to frighten, intimidate, threaten, abuse or harass another person, to send a message that is obscene, lewd or profane, and to send such messages while preventing or attempting to prevent the disclosure of the identity of the sender. Persons who are knowledgeable that a crime has been committed potentially are criminally liable as well. In instances in which violations are discovered, Locketz recommends sharing that information with other employees to educate them on what isn't permissible, provided key identifying information is deleted to avoid making the identity of the culprit known. "That would be really good in educating the work force in what crosses the line and what doesn't," says Locketz. "But if they cannot take out the personal identifiers, then I would not suggest using actual examples." Locketz' advice to employes is straightforward. "Do not write anything in an e-mail that you would not want your employer to see. And do not think that when you hit the delete button that your e-mail is now lost and gone forever. It is still retrievable by your employer," she says. In fact, companies that specialize in retrieving records, including e-mail that someone might have thought had been destroyed, are hired by plaintiffs to search for and find records in support of racial discrimination or sexual harassment in the workplace. "What I tell my students is, 'Never put anything in e-mail that you're not willing to put in the newspaper," says UW-M's Landweber. "The reality is that anything that is put on the Internet today isn't secure, unless you encrypt it. When you send an e-mail message it goes through a good number of routers, a number of different organizations on the way to its destination. It's unreasonable to believe that what you're sending is really going to be private."Is it reasonable to assume that employes who have used e-mail for the past few years for personal reasons at work can be converted to adhere to a policy that expressly prohibits personal use of e-mail? Generally, government agencies prohibit employes from making personal phone calls, though the prohibition isn't enforced routinely. Certainly the vast majority of employes in the private sector have used the telephone to conduct personal business. "The fact that a company believes employes are not going to use e-mail for their own private use is absurd," says Locketz. "If you would put that in the context of the telephone, you would realize just how absurd that is." A UW-M subcommittee looking into the matter recently determined that faculty and staff personal use of e-mail should be "incidental." If an employe receives an e-mail message from a son or daughter who's away at college, and responds to it, it Landweber's opinion that would qualify as incidental, whereas an employe running a side business out of the office via e-mail would warrant "significant action." "There's a whole range in between. If you go after the minor infractions, you get into the whole range of what's minor and what's not. There may be some subjective judgement involved. "There's a reasonableness notion that is really important here, and that should be the case with most businesses," Landweber continues. "A company could spend countless hours and countless legal dollars if they tried to police every last activity of their employes. Generally, it's just important to be moderate and reasonable as to how they do things." Shorter suggests employers view employe personal use of e-mail with an eye toward risk assessment. "I talk about it as a slippery slope. If you allow personal use, are you just doomed? I don't know that that's necessarily true," says Shorter. "But you always want to take a conservative approach when drafting a policy to prevent any possibility of liability. Is there reasonable personal use, or some kind of limitation? Absolutely. But you may open the doors to the possibility of liability." Creating and enforcing an e-mail policy is no different than creating and enforcing a policy against sexual harassment, says Shorter. "But I'm not saying it's necessarily going to be easy to implement it," he cautions. Should an employer learn that sexually explicit or racially discriminatory messages are being sent by personnel, the next step, deciding what to do about it, should receive careful consideration. In Shorter's view, Miller might have over-reacted by firing Mackenzie in the "Seinfeld" case. "Would you create liability by enacting an e-mail policy? I doubt it," he says. "Could you have liability by not having one? That's quite possible."

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