Many employers have implemented policies and procedures to protect employees from harassment in the electronic work space in an effort to limit liability.
EEOC statistics suggest that claims of unlawful harassment through electronic communications, including emails, pornographic websites, and sexual comments on social media and blogs make up an increasing percentage of sexual harassment charges and lawsuits.
Few court decisions address whether harassment by electronic conduct should be treated differently than physical or verbal forms of unlawful conduct.
Yet, in an age where employers provide computers, email accounts, and internet access to employees, efforts to filter and block offensive conduct through available software should bolster the argument that the employer affirmatively sought to prevent harassment.
The rise in harassing electronic conduct has prompted companies to purchase software that monitors electronic communications, filters out offensive messages and graphic content and renders such communications inaccessible to their workforce.
Indeed, an estimated three-quarters of major US corporations record and monitor employee electronic conduct, including email, internet communications and computer files.
Filtering Out Offensive Content
Filtering software and tools have become commonplace, readily available, and inexpensive. The software allows employers to better monitor offensive employee conduct and to protect those who would otherwise be victimized, directly or indirectly.
The employee who directs the offending information to someone whom he or she believed would not be offended may still be in violation of a zero-tolerance policy. Any expectation of privacy would be eliminated when the company’s electronic policies separately disclaims expectations of privacy when using company email or accessing content on a company computer.
Indeed, courts have validated the right of employers to monitor employees’ electronic communications in order to prevent personal use or abuse of company resources.
An employer that puts software mechanisms in place to filter out offensive content should be able to invoke an affirmative defense to employee allegations of electronic work space harassment.
Specifically, if a judge or jury finds that the employer’s use of available technology to monitor and block harassing communications was reasonable and effective in light of the employer’s financial resources, and the capabilities and the effectiveness of its technology, the court should evaluate how harassment occurred in spite of these efforts.
If the court determines that the employer did everything it could reasonably be expected to do to monitor and block the offending content, the court should allow the company to plead its efforts as an affirmative defense.
Advice for Employers
The law is still catching up with technology.
While we wait for courts to adopt a specific affirmative defense for employers, certain precautions may still aid an employer’s defense. Companies should develop robust technology policies that define the types of electronic content forbidden by company policy and that inform employees that the company is monitoring corporate email and electronic activity and blocking access to inappropriate websites and communication of offensive content.
Companies should be consistent in taking immediate, corrective action should any employee, regardless of position, violate the anti-harassment and technology policies.
Finally, employers should consult with their IT departments to explore and acquire software solutions that prevent unlawful harassment.