May 17, 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.
Part Three. Judicial Response to privacy in the workplace
In this installment on preventing sexual harassment, I will look at the judicial response to privacy in the workplace and the framework under which courts should consider responding to digital acts of sexual harassment. The Second Circuit illustrated the diminished expectation of privacy in the workplace in Leventhal v. Knapek, holding that an employee does not have a reasonable expectation of privacy with respect to his or her digital activities in the workplace. In support of the same principle, Congress enacted the Electronic Communications Privacy Act of 1986 (ECPA) and the Stored Communications Act (SCA), both of which grant employers the right to monitor employees’ e-mail communications as long as the monitoring occurs in the ordinary course of business. The majority of case law interpreting the ECPA has found that employers can monitor employees’ e-mail messages with or without consent, and even without notice.
These judicial and congressional actions have expanded employers’ ability to monitor employee’s electronic communications without violating federal privacy laws. Because employers have access and control over employee’s electronic communications, employers are now in a position to minimize digital sexual harassment in the workplace. For example, employers can block e-mails containing sexually explicit terms and restrict wallpaper settings on corporate computers so users cannot display inappropriate or offensive material; they might also monitor employee use of social networking sites; and they could review phone calls, text messages, and data use on a company-issued mobile phone. The ability and the right to monitor all employee digital transmissions places employers in an ideal position to take simple, proactive measures to prevent most instances of digital sexual harassment.
The rights and abilities of employers to read digital communications sent and received by employees should compel courts to extend the holdings of the Blakey line of cases, among others. Because employers who use blocking and monitoring technology have notice of potential digital sexual harassment before it reaches the intended recipient, employers should bear the burden to provide reasonably sufficient technical protection that limits exposure to such sexual harassment. Unfortunately, courts have not bridged the gap between employers’ freedom to monitor employee acts and employers’ responsibility to prevent employee acts capable of causing harm. More precisely, many courts have yet to address whether an employer should be entitled to plead an affirmative defense to digital sexual harassment claims when the employer has failed to monitor the digital work environment, prevent digital sexual harassment, or institute mechanisms to facilitate employee complaints of digital sexual harassment.
To combat this, I propose a framework for using the affirmative defense in cases of digital sexual harassment. First, it should focus on the employer’s preventive efforts rather than corrective measures. Second, it should reduce or eliminate the employee’s obligation to take advantage of these preventive opportunities, as employees are often unaware of or unable to access monitoring and blocking software.
To apply this, a court should first examine the defendant employer’s technological infrastructure to determine whether its existing information technology was capable of monitoring and blocking the digital communications responsible for the sexual harassment claim. If the court ascertains that the technology lacked this capability, the court should allow the defendant to plead the affirmative defense. If the court finds that the employer had and deployed monitoring and blocking information technology capable of detecting and blocking content typical of sexual harassment, it must then determine whether the employer took reasonable steps to monitor and block the communications in question. At this stage, the employer has the burden of proving that it took reasonable efforts to prevent the communications based on the capabilities and normal use of its information technology systems. If the employer cannot establish that its use of monitoring and blocking technology was reasonable, the court should deny the affirmative defense.
Under the framework of this test, the availability of the affirmative defense is contingent on the presence and use of technological systems that are capable of monitoring and blocking digital communications. By placing the burden on the defendant, the court would properly hold employers responsible for the alleged hostile work environments that they control. This approach reflects the reality that, unlike in the physical workplace, preventive measures can effectively eliminate sexual harassment in the digital workplace.
In the next post I want to take the framework discussed above and expand on the analysis of how a court should implement each step.