June 14, 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 Five. Final Analysis and Conclusions.
In the previous post I digressed on the six facets of analysis the court should contemplate when considering a sexual harassment claim. Today I want to wrap up this analysis and leave the reader with a few final thoughts on preventing digital sexual harassment in the workplace.
After iterating through the steps in the prior blog post, courts should apply a reasonableness standard in their analysis of employers’ blocking and monitoring capabilities. In applying the standard to cases of digital sexual harassment, courts should be mindful of the costs and efforts associated with the employer’s monitoring capabilities. More precisely, courts should make fact-specific inquiries on a case-by-case basis, considering factors such as the size of the company, the number of employees, the ease and economy with which the system can be used or modified to monitor and prevent sexual harassment, the employer’s awareness of sexual harassment acts, and the volume of the digital transmissions the employer must track. Finally, courts should closely scrutinize defendants who use technology that complies with the Sarbanes-Oxley Act, HIPAA, or other legislatively mandated tracking or monitoring requirements. In such cases, monitoring and tracking technology will almost certainly be in place.
When a court finds that a defendant does not possess the necessary technological infrastructure, the court should permit the defendant to plead the affirmative defense as it currently operates, with the focus placed on corrective procedures and preventive measures. When the infrastructure is in place but has not been used to prevent sexual harassment, the affirmative defense should also be permitted, except when the plaintiff’s claim presents clear and convincing evidence that the defendant deliberately decided not to use the existing technology. For example, if a plaintiff produces e-mails establishing that the decision was driven by a desire to avoid losing the right to plead the affirmative defense, the court should deny the defendant the right to assert the affirmative defense notwithstanding the technological systems in place. This exception is necessary because courts should sanction defendants who purposely expose their employees to a hostile digital workplace. After finding that the defendant’s infrastructure was capable of blocking and monitoring the alleged digital communications, the court must then determine whether the defendant took reasonable steps to block or monitor the communications.
The court should then use the information acquired in the first step to determine whether the company took reasonable measures to track digital communications unrelated to the sexually harassing communications. The court may find it appropriate to appoint an independent third party, similar to an expert called to resolve digital discovery disputes, to determine whether the defendant used its existing technology in a reasonable manner to protect the digital workplace. As mentioned above, the court must perform fact-specific analysis in each case, considering both fiscal costs and corporate policies, to determine the practicability of the defendant’s implementation of its technological system.
In conclusion, sexual harassment and hostile work environments violate an individual’s right not to suffer discrimination in the workplace. Today courts have yet to fully appreciate an employer’s ability to take reasonable preventive measures to protect the digital workplace. Given employers’ expansive monitoring of employees’ digital communications in general, it is reasonable for courts to require the monitoring of communications that are of a sexually harassing nature. The courts, therefore, should modify the affirmative defense to ensure protection of the workplace for employees and to create an effective legal framework to address digital sexual harassment claims.