April 19, 2013
This series of blogs gives the reader a perspective on the rights, duties, and responsibilities of employers and employees with respect to digital sexual harassment in the workplace.
From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment, such as unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. The fundamental difference between digital and physical sexual harassment is the employer’s ability to monitor and block offensive digital communications and thus prevent digital sexual harassment. This possibility of prevention is the underlying reason for treating the two forms of harassment differently and for modifying the existing affirmative defense. In this blog series I will review this very serious issue of digital sexual harassment and potential remedies for employers as well as the courts.
Although an employer cannot observe or control all the actions of its employees in the physical workplace, the employer can prevent sexual harassment in the digital workplace through cost-effective technology to monitor the content of digital communication.
Currently, employers monitor and block employees’ digital communications to protect trade secrets, track productivity, and enforce corporate policies and procedures. In light of these uses–and, more importantly, the legal sanction of these uses–employers should monitor their internal networks for offensive e-mails or communications that constitute sexual harassment. Whether an employer took reasonable precautions with respect to the size and scope of its existing technical infrastructure should determine its liability. These precautions should also bear directly on the employer’s ability to plead an affirmative defense to employee allegations of digital workplace sexual harassment.
Legal History on Digital Sexual Harassment
Digital sexual harassment in the workplace occurs when employees use e-mail or the Internet to sexually harass other employees or to create a hostile work environment. Few cases have addressed employer liability for these acts. In Owens v. Morgan Stanley & Co., the district court held that while unchecked offensive e-mail communications circulating within the workplace could constitute sexual harassment, a single incident of inappropriate e-mail was insufficient to establish a claim. In Strauss v. Microsoft Corp., the district court held that jokes and sexual parodies, in combination with other remarks e-mailed by a supervisor to employees, were admissible and relevant evidence of sexual harassment.
The New Jersey Supreme Court, in Blakey v. Continental, Inc., held that a female employee had a valid sexual harassment claim when allegedly defamatory and sexually harassing material was posted on an electronic bulletin board. Although the employer, Continental, did not maintain the bulletin board and employees could only access it through the Internet, the court found that Continental had notice of the sexual harassment and that the electronic bulletin board was integrated into the workplace to such a degree that Continental had a duty to correct off-site sexual harassment by coworkers. Blakey stressed that an employer’s responsibility to prevent sexual harassment and hostile work environments extends to both the physical and digital workplace. Under Blakey, once an employer has knowledge of employee-to-employee digital sexual harassment, the employer must take affirmative steps to halt the sexual harassment.
The Blakey court, however, did not place an affirmative obligation on employers to prevent sexual harassment by monitoring digital communications. The court stated that although “employers do not have a duty to monitor private communications of their employees,” they “do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know” of the sexual harassment. The court limited the scope of its holding due to “grave privacy concerns.” Recent decisions and legislative enactments have reduced these concerns and suggest extending the reach of the decision.
In the next installment of this series on preventing digital sexual harassment, I will discuss some software options currently on the market, how they are implemented, and whether or not they may be a fit for your organization.