Sexual harassment in the 21st century: e-harassment in the workplace.

Electronic mail and the Internet are a reality of the modern workplace. These technologies have enhanced the abilities of companies to transact business in a more efficient way by allowing employees to interact more quickly both internally and externally with other employees, customers, vendors, and suppliers. The Internet has also granted unrestricted access to a vast array of information that, in some cases, allows employees to be more productive. Unfortunately, these technological tools also bring with them renewed legal challenges for employers in an old area--sexual harassment. Although certainly not a new claim to employers, many sexual harassment suits are now based primarily on evidence of allegedly inappropriate e-mails and/or Internet use. Even if they are not the main claim in the litigation, the use, or more appropriately misuse, of technology will be a prominent feature in harassment and discrimination cases in the future. Fortunately, like more traditional forms of sexual harassment, claims based on harassment conducted through e-mail and the Internet can be largely prevented based on lessons learned by other employers and through careful advanced planning.

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Today, the vast majority of companies conduct at least some of their business over electronic systems. In order to keep pace with the need for more information and to remain competitive in an ever-changing market, companies have dramatically increased their use of new modes of communication. Almost every business now has an electronic mail or an "e-mail" system. Further, many companies carry out portions of their business via an intranet or the Internet. Other companies grant access to the Internet to some, if not all, employees. The ease with which these systems allow employees to communicate with each other and with the outside world presents obvious business advantages. Unfortunately, employers are beginning to see that the advantages gained by these technologies bring with them the risk of a new wave of sexual harassment claims based on the alleged misuse of these new modes of communication.

Sexual harassment claims are by no means new to employers. In 1986, the Supreme Court formally recognized that sexual harassment was covered by the prohibition against discrimination based on sex found in Title VII. Although sexual harassment claims accounted for a portion of all employment claims since that time, these claims have been on the rise since the early 1990s. In 1991, the Equal Employment Opportunity Commission (EEOC) had fewer than 7,000 claims of sexual harassment nationwide. On the other hand, in each of the last four years, the EEOC has had more than 15,000 of such claims.

In addition to an increase in the number of these claims, employers have seen a change in the type of evidence offered to support a sexual harassment claim. Although there is a variety of evidence that may be offered to attempt to prove sexual harassment, pin-up calendars, allegations of inappropriate verbal jokes, or other verbal sexual banter in the workplace are being replaced with allegations of sexually explicit e-mails and pornographic Internet images. Notably, the claims are not limited to high tech companies. Indeed, any employer that uses technology, including more traditional "old economy" companies, can fall victim to such claims.

Of course, e-harassment claims do not completely account for the increase in the number of sexual harassment lawsuits brought against employers. There is, however, clearly a growing trend toward claims based on inappropriate e-mail or viewing of sexual material on the Internet while at work. In order to reduce these claims, or at least attempt to minimize the exposure to such claims, employers will have to adjust to meet the new dynamics of a changing workplace.

THE PREVALENCE OF E-MAIL AND INTERNET USE AT WORK

Use of e-mail and the Internet at the workplace has become both a reality and a necessity for many businesses in today's marketplace. The efficiency and ease of sending e-mails and the vast market potential of e-commerce have propelled many companies into a technological environment. Indeed, e-mail may become, if not already, more common than the traditional interoffice (hard copy) memo.

By far, the vast majority of computer-related communications take the form of electronic mail. E-mail allows the sender to direct a message to a single person or group of intended recipients and is not normally intended by the sender to be viewed by third parties. Obviously, e-mail is vastly quicker than traditional written correspondence because it is sent and received almost instantly. The ability to copy and forward messages also allows individuals working in groups to quickly update each other on developments learned from many different sources. Some companies also now allow certain employees to telecommute or otherwise work outside the traditional office environment. In such situations, there is little direct personal interaction and e-mail is often the primary source of communication. Even if housed in the same office, many companies are seeing a shift from face-to-face communication to electronic interaction. Instead of walking down the hall, employees are working together over the e-mail or a company provided intranet.

While e-mail is used primarily to communicate thoughts and ideas, in many respects, it is very different than verbal conversation. The distance created by communication via e-mail lends an anonymity--or at least a detachment--to these communications that may present real dangers for unsuspecting employers. Foremost, people may say in e-mail what they would never have said in person or even in writing. Further, as some employers have discovered in litigation, while individuals may disagree after the fact about the contents of any given conversation and whether statements or sentiments of a questionably discriminatory or harassing nature were in fact made, the sending of an e-mail message leaves a record of at least the fact that a message was sent, if not the content of the message itself. Even more potentially devastating is the fact that, in the world of e-mail, delete often does not mean delete. Potentially damaging messages often remain on the hard drives of senders and recipients long after they were thought to have been erased. The ability to copy and forward e-mails also means that messages can be sent to or viewed by unintended recipients. Although e-mail is likely a permanent fixture in today's business world, the above factors show that there is a great potential for misuse …