By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.
Even though e-mail has been a common form of business communication for more than two decades, ill-advised e-mails continue to be commonplace. Recent headlines regarding leaked e-mails from the Democratic National Committee and the Clinton Presidential Campaign have again reminded us of both the power of such e-mails and the ease with which they can be distributed and intercepted.
The significant legal risk presented by inappropriate e-mails in the workplace was confirmed in a 2009 survey by the American Management Association. The survey found that (1) 9% of all companies have faced a lawsuit triggered by an employee e-mail, and (2) 24% of employers have had an employee e-mail subpoenaed by courts or regulators. The survey recognized that an employer can be exposed to significant liability for an ill-advised e-mail. This risk of liability extends both to employees and third parties.
Liability for Harassment or Discrimination Toward Employees
For instance, the content of an inappropriate e-mail can, without more, be the basis for a legal claim under employment discrimination laws which prohibit harassment based upon a protected characteristic, status or activity.
EXAMPLE: In 1995, Chevron agreed to pay four women $2.2 million to settle a harassment suit based upon the distribution of sexually offensive e-mails, including one entitled “25 Reasons Why Beer is Better than Women.”
Evidence of Unlawful Conduct Under Employment Laws
Inappropriate e-mails can also be relied upon as probative evidence in suits alleging violations of applicable labor and employment laws.
EXAMPLE: In a suit by a female employee against Microsoft alleging sex discrimination in a supervisor’s promotion decision, a New York court in 1993 denied summary judgment based upon evidence which included e-mails in which the supervisor (1) referred to himself as the “president of the amateur gynecology club”, (2) referred to a woman in the office as the “spandex queen”; and (3) forwarded a parody of a play entitled “A Girl’s Guide to Condoms” to a male co-worker, who later forwarded the e-mail to the plaintiff.
EXAMPLE: In a reverse discrimination suit brought against Bax Global by a Caucasian employee who alleged that he was terminated because he was not Hispanic, e-mail evidence included (1) a statement that the employee’s removal would inspire confidence in the company’s Latin American sector, and (2) concerns about the appearance of naming a Hispanic replacement only a day after the Caucasian employee’s scheduled termination. A Florida jury awarded the plaintiff $500,000 in compensatory damages and $1 million in punitive damages.
Defamation and Invasion of Privacy as to Current or Former Employees
As with any means for the transmission of substantive information, an e-mail can be the basis for a costly defamation and invasion of privacy claim by a current or former employee.
EXAMPLE: A former employee sued New York Life for defamation based upon an e-mail forwarded to 16 employees stating that the employee had been fired for using “her corporate American Express card in a way which the company was defrauded.” In 1999, a New York jury awarded the former employee $250,000 in compensatory damages and $1 million in punitive damages.
Liability for Illegal Conduct as to Third Parties
E-mails which violate criminal or civil laws designed to protect third parties can also be the basis for vicarious or independent liability of the employer for the unlawful conduct of the employee.
EXAMPLE: In 2005, a New Jersey Court held an employer could be held liable to a non-employee victim based on the conduct of an employee who used his work computer to view and transmit, via e-mail, child pornography involving the victim’s daughter.
Recommendations for Employers
To avoid the legal pitfalls associated with inappropriate e-mails, employers who provide e-mail access to their employees should implement policies and procedures which address the following:
- The reporting and reduction of unwanted spam.
- Prohibited workplace communications, including e-mails which (1) use fictitious identities or the identities of other persons without their knowledge or consent, (2) reveal confidential information or trade secrets, (3) constitute threats, harassment, bullying, false statements, gossip or unlawful activity, (4) invade the privacy of other persons, (5) expose the employer to civil or criminal liability, or (6) jeopardize the safety or physical, mental or emotional health of another person.
- The education of supervisors and employees regarding the potentially explosive nature of e-mails.
- The enforcement of workplace rules through lawful monitoring of information transmitted using the employer’s e-mail addresses and accounts.
- Notice and consent measures which eliminate any expectation of privacy from employer monitoring as to information stored in, or accessed through, the employer’s computers, including e-mails.