Misuse of Technology Can Create a “Hostile Work Environment”

According to the US Equal Employment Opportunity Commission, 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 may be indirectly liable when on notice that its employees are receiving highly offensive, sexually explicit e-mail or accessing inappropriate sites on the Internet, including downloading sexually explicit images and other materials. Michael R. Overly, an attorney and Certified Information Systems Security Professional writes that to avoid liability reasonable steps must be taken to prevent employees from engaging in this activity. The most frequent form of this liability arises when an employee downloads sexually explicit jokes, graphics, and stories from the Internet and then forwards them around the company by e-mail. In addition to potential liability for sexual harassment, the presence of this material on the employer's computer systems may give rise to liability for copyright infringement (i.e., the images and other content will likely be copyrighted), prosecution for trafficking in child pornography or committing hate speech, and potential seizure of the company's computer system because it was used in the commission of a crime.

I have previously blogged about the problem of sexual harassment in the workplace. Separate and apart from potential liability issues is the very real problem of lost employee productivity as a result of these activities. The amount of time spent by employees surfing non-business related sites on the Internet and, in particular, sites with sexually explicit content is at an all time high. Most businesses now view the loss of employee productivity as so substantial that the use of blocking software and other technological measures to limit access to inappropriate sites has now become the rule, rather than the exception, in business. 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, however, have finally provided some guidance for businesses. An employer may establish an "affirmative defense" to a claim of harassment by showing that it had a specific policy concerning employee use of technology, including the Internet and e-mail, and that it responded promptly to potential harassment and discrimination claims. That is, the employer must show that it was proactive in addressing the problem (e.g., the use of written technology policies and employee training, use of Internet and e-mail content monitoring technology) and that it took swift action as soon as it became aware of inappropriate activity.

In Faragher v. City of Boca Raton and Burlington Industries, Inc., the US Supreme Court recognized a new affirmative defense that may be raised by employers in sexual harassment cases. The defense has two elements: (1) that the employer had exercised reasonable care in preventing and promptly correcting any sexually harassing behavior, and (2) the employee unreasonably had failed to take advantage of the employer's preventive or corrective procedures or otherwise avoid harm. In Schwenn v. Anheuser-Busch, Inc., an employee received sexually harassing e-mail messages from fellow employees. The employee failed to establish a claim of hostile work environment because, in large part, her employer had an e-mail policy in place and promptly responded to her claims by meeting with employees responsible for sending the inappropriate e-mail to advise them of the company's policy against such messages.

As the cases described above make clear, employers can substantially mitigate potential liability by adopting a three-pronged approach to employee use of technology: (1) adopt an appropriate technology use policy, (2) conduct training for employees to ensure they understand their rights and obligations regarding their use of corporate computer resources, and (3) promptly enforce the policy, including the implementation of appropriate technological measures (e.g., e-mail content monitoring applications and Internet monitoring and blocking programs). The use of technological measures, in particular, has become a key element of many businesses' approach to preventing sexual harassment claims. By using content monitoring technology, these businesses can prevent access and distribution of sexually explicit materials before they given rise to a harassment claim. Use of such technology would likely have prevented many of the harassment claims filed to date involving employee use of e-mail and the Internet. 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.

Given the potential damages and adverse publicity businesses face from harassment lawsuits, employers should not delay in implementing the three-pronged approach outlined above. By taking action now, before a claim ever arises, businesses can potentially avoid damages later. The costs involved in implementing this approach are minimal compared to the potential damages that may result from even a single lawsuit. Moreover, employers have an ethical responsibility to protect workers from any form of sexual harassment including the use of technology.

Blog posted by Steven Mintz, aka Ethics Sage, on September 14, 2011