Employee Use of Technology in the Workplace: Employer Legal Obligations and Claims of Sexual Harassment
Ethical and Legal Responsibilities of Using Technology in the Workplace
This is the second of a two-part blog on employee use of technology in the workplace. Today’s blog discusses the danger of using the Internet, in particular email, for personal purposes while on the job. This would include text messaging to engage in risky behavior in the workplace that might lead to possible sexual harassment charges. Yesterday’s blog addressed employee rights when using technology in the workplace including privacy rights. There has been a growing trend of accessing information on the Internet during work hours that brings into the question the ethical propriety and employer legal obligations. The primary ethical questions are: What are an employee’s obligations to an employer when using company technology for personal purposes including accessing the Internet and text messaging? What are an employer’s obligations to an employee to establish a policy on such matters? With respect to legal concerns, in particular sexual harassment, the guiding principle is whether the postings and other activity on the Internet created a “hostile work environment.” I discuss this important legal concept in a previous blog.
Let’s assume a female employee, let’s call here Kelly, is sitting at her desk one day and receives a text message from one of her superiors, Brian, who comments on Kelly's outfit and invites to join him for lunch ostensibly to discuss her possible promotion. Kelly does not respond to the appearance comment but accepts the lunch appointment so as not to be perceived as a team player. At that lunch, Brian makes specific remarks about Kelly’s outfit but waits until the end of the lunch to tell her the promotion decision will be made by Greg, the new division manager. Kelly returns to her office and receives a text message from Brian that says: You looked hot at lunch and, by the way, Brian loves long haired, blond and blue-eyed women. Kelly does not respond to the message hoping instead her silence will cut off the comments that have made her feel uncomfortable. However, two hours later Brain sends another text saying: “Think about what I said.”
The most common form of corporate liability for harassment is for claims based on a "hostile work environment." This type of environment is present when "the workplace is permeated with discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment ...." Employers can be directly or indirectly liable for sexual harassment based on a hostile work environment. Direct liability results when, for example, the employer's supervisor harasses a subordinate. In this type of case, the wrongful conduct of the supervisor is imputed to the employer on the theory that the employer should be responsible for the supervisor's actions. Indirect liability results when an employer is liable for failing to adequately address and correct behavior or activity that creates a hostile work environment. An employer who is on notice that its employees are receiving highly offensive, sexually explicit e-mail or accessing inappropriate sites is subject to indirect liability. In my hypothetical situation, Kelly would have to inform the appropriate party within the organization (i.e. the ethics officer, human resources, or legal department) to go on record that the comments of her supervisor and implications for her behavior make her feel uncomfortable and it is unwanted.
There is no doubt that the use of technology in the workplace has grown exponentially over the past few years because of access to the Internet through the corporate e-mail system. That access affords employees’ use of a communications medium that may result in substantial liability for their employers. Recent cases provide guidance on what might be the employer’s liability when technology is used to create such an environment. For example, an employer may be liable for failing to monitor and prevent inappropriate use of e-mail and the Internet when it has notice of the offensive use. In Blakey v. Continental Airlines, Inc., the New Jersey Supreme Court ruled that postings on a work-related electronic bulletin board constituted a hostile work environment for which the employer could be held liable. The court ruled that the employer had a duty to remedy the harassment because it had notice employees were posting defamatory and harassing messages on the electronic bulletin board.
Until recently, employers had little guidance with regard to the measures they should take to mitigate potential liability for harassment claims. Several relatively recent decisions do provide some guidance for businesses. An employer may establish an "affirmative defense" to a claim of harassment by demonstrating it:
1. Had a specific policy concerning employee use of technology, including the Internet and e-mail;
2. Responded promptly to potential harassment and discrimination claims thereby exercising due care;
3. The employer must show that it was proactive in addressing the problem through employee training on the use of the Internet in the workplace, and clearly stated and communicated restrictions on accessing one’s e-mail account and using social media to post personal information; and
4. The employer must fully explain how the company will monitor compliance and then take swift action as soon as it becomes aware of any inappropriate activity.
Other important steps include to treat offended and offensive employees fairly both in hearing the case and imposing penalties and set the proper (ethical) tone in word and deed that sexual harassment in any form will not be tolerated.
To be effective, the technology policy must clearly describe each employee's rights and obligations regarding use of the corporate computer systems. In the context of potential harassment claims, a basic policy should include a statement regarding the employer's position against harassment, including examples of inappropriate uses. Here’s one such statement:
Material that is harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate, including any comments that would offend someone on the basis of race, age, sex, sexual orientation, religion, or political beliefs, national origin, or disability, must not be sent by e-mail or other form of electronic communication, viewed on or downloaded from the Internet or other online service, or displayed on or stored in our computer systems. Users encountering or receiving such material must immediately report the incident to their Supervisor. For more information, please see our Policy Against Sexual Harassment.
Blog posted by Steven Mintz, aka Ethics Sage, on August 31, 2011