Legal Issues that Apply to Electronic Messages

By Lindy Korn, Buffalo Law Journal; Vol. 72 No.80

Critical and insulting postings on a work-related electronic bulletin board might constitute workplace harassment, according to a recent New Jersey Supreme Court decision (Blakely v Continental Airlines Inc., N.J., No. a-5-99). The unanimous decision will allow Continental Airlines’ first female captain to proceed with a lawsuit to determine whether e-mail messages sent by fellow pilots were severe enough to constitute harassment.

Questions to consider if workplace harassment existed in this case include:

The State Supreme Court held that the electronic should be regarded as part of the workplace, and that the postings could have constituted a hostile environment workplace claim under state law.

Electronic postings have become a popular mechanism for distributing information for many companies. If employees are provided with such communication tools that have been created by the employer, and if defamatory statements that the employer has knowledge of are made about an employee, the employer would have a duty to remedy that harassment in the name of zero tolerance.

Many employers monitor the electronic messages of their employees to prevent any inappropriate or discriminatory content that could serve as documentation in the event of a hostile environment claim.

Monitoring activity can raise ethical issues and claims of invasion of privacy by the employees. To avoid such claims, employers who choose to monitor electronic postings should adopt an Internet and e-mail usage policy. The policy should specify approved and disapproved activities, and should explain that Internet chat rooms may be monitored; that e-mails may be read by office management; that communication systems may not be used to harass or discriminate; that unlawful usage will be reported; and that violations of the policy may result in discipline up to and including dismissal – which can also have a deterrent effect. Inaction on the part of the employer can result in liability.

In 1983, Tammy Blakely, the first female captain to fly an airbus for Continental, filed suit alleging sexual harassment and sex discrimination under Title VII. She alleged that Continental did not respond to her repeated complaints about pornography that male pilots left in the cockpit. In 1995, while the lawsuit was still pending, various co-workers posted a series of messages on the Crew Members Forum, an Internet bulletin board for pilots. Individual postings stated that Blakely’s allegations were false, that the lawsuit was motivated by greed and selfishness, that Blakely had poor piloting and interpersonal skills, and that female pilots who brought sex discrimination lawsuits were looking for favorable treatment, to which they were not entitled because of their poor reputation as pilots.

Blakely sued seven pilots in state court, claiming that they published defamatory statements on the system. She also sued Continental, arguing that the airline was liable for the hostile environment that arose form the defamatory statements.

One sign of the growing importance of legal issues raised by improper employee use of e-mail is monitoring of e-mail by employers. An American Management Association survey reports that 78 percent of 2,133 large United States corporations monitor employees’ phone calls, e-mails, and other communications and activities in the workplace.

Businesses should inform employees that they should expect privacy with regard to information on a computer system owned or controlled by the business. Employees should be advised that they cannot use any computer system to create a hostile or discriminatory workplace. This information should be part of a broader policy elaborating the employer’s position on the use of e-mail and the company’s monitoring activities.