With the increased use of the Internet and e-mail, employers are facing new challenges in trying to prevent workplace sexual harassment. Employees may be subjected to sexual advances through Internet or e-mail messages, and the distribution of sexually-oriented material can form the basis of a lawsuit for �hostile work environment.� Technology has made it simple for messages and images to be sent to large groups of people with the touch of a button.
As a result courts have begun to address the use of the Internet and e-mail in connection with sexual harassment claims. In one case, the court held that an Internet chat room could not be considered a “workplace” for purposes of a hostile work environment claim, because the Internet access had been obtained from a third party and was not provided by the employer. However, where the employer provides such access or an intranet within its workplace, the outcome of such a case might be different.
E-mail messages can provide evidence of discrimination long after they were sent. Such messages can often be retrieved although the individuals sending them believe they have been deleted. In recent cases plaintiffs have been successful in surviving summary judgment and getting their case to a jury because e-mail messages which supported their claims existed.
Employers have had problems with employees’ accessing pornographic sites while at work. A recent study indicated that 2% of employees visited pornographic sites on the Internet during their work breaks. A Nielsen Media Research Survey revealed that employees of IBM, AT&T, Apple, NASA and Hewlett-Packard visited the Penthouse site while at work thousands of times a month.
Employers, on the other hand, may be protected by instituting a preventive program, quickly and thoroughly investigating claims, and by publishing a policy on electronic communications. In connection with such a policy:
Employers should determine which employees need Internet access and limit it accordingly.
Employees should have confidential passwords so that users are identified.
The employer’s electronic communications policy should cross-reference and incorporate the employer’s sexual harassment and non-discrimination policies. The policy should make employees aware that sexual harassment over the Internet or through e-mail violates the company’s policy, will not be tolerated, and will result in discipline up to and including discharge.
Employees should be reminded that Internet and e-mail use while at work are company property, and there should be no expectation of privacy in their use.
Employers should reserve the right to monitor employee use of the Internet and e-mail and should periodically do so.
Employers can also monitor which sites are being accessed and block access to certain sites.
Finally, software is available that can search for inappropriate words in e-mail messages.
Although they are valuable tools, the Internet and e-mail can increase an employer’s potential liability and must be managed accordingly. One way to implement a preventive policy would be to amend the employer�s existing employee handbook to include a section on electronic communications. Employers who do not maintain a handbook or policy manual should give serious consideration to implementing one. If such a program is implemented, employees should be required to sign off indicating they have received and reviewed the company�s policy.
We live in an age where communication has become faster, easier, and more widespread. Speed, ease of use and global coverage have enormous benefits but also carry responsibilities and potential pitfalls. In the days of pen and paper, the time lag between composition and delivery often served as a check on inappropriate communications. Now, with the push of a button, ill-considered messages can be disseminated irretrievably. Employers and employees alike must be vigilant to insure that the benefits of this new technology do not result in misuse.
– Cynthia Dixon