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More and more, employees have access to e-mail at work, as well as access to the Internet. Of course, because of the informal nature of e-mail, employees tend to send things via e-mail, including jokes or stories that they would never tell their colleagues in person, that they wouldn’t say in the office in any other context. Unfortunately, then, buried within the systems of many employers can be significant numbers of off-color, racial, ethnic, and/or sexual jokes, stories and innuendo, which may or may not reflect what employees actually say aloud at work. In such cases, the employees’ outward compliance with the company’s sexual harassment and nondiscrimination policy may only be part of the story. Employee-plaintiffs in the discrimination context are increasingly telling the other side of the story — which is often overlooked or unknown by the employer — because, of course, it involves a company’s electronic memory that is rife with objectionable content. In other words, e-mail is increasingly playing a role in claims of employment discrimination, both as evidence of unlawful conduct and as the means through which the bad actor affects the discrimination or harassment. In Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1998), the plaintiff, Wamiq Sattar, a non-religious Muslim, received hundreds of e-mails from his supervisor, a zealous Muslim, containing citations to the Koran and dire warnings of the divine punishment that awaited those who turn their backs on Islam. In addition to the harassing e-mail, Sattar also alleged that his supervisor denied him a promotion and gave him poor ratings as a result of his secular religiosity. When Sattar was eventually terminated, he filed suit against his employer for religious discrimination. And through discovery, Sattar sought and received over 210,000 pages of e-mail from Motorola’s system. In Knox v. State of Indiana, 93 F.3d 1327 (7th Cir. 1996), the plaintiff, Kristi Knox, alleged that, over a two-year period, her supervisor sent her numerous e-mail messages asking her for sex. Many of his e-mails contained “cute” acronyms, such as HGTWM for ” have a ‘horizontal good time with me.’” Knox either ignored the e-mails or sent back quick responses indicating that she would get back to him later. But, eventually, Knox complained about her supervisor’s harassment. Although he initially denied any knowledge of why Knox would file a complaint against him, his tune changed when he found out that the investigator had copies of the e-mails he had sent Knox. When Knox later sued her employer for sexual harassment and retaliation, she used copies of the e-mails to bolster her case. Employers can also face employment discrimination litigation from e-mail which is on the system, but which individual plaintiffs did not, themselves, actually receive. Thus, the mere fact that offensive e-mails circulate in the office may be perceived by a plaintiff as evidence of discrimination or harassment. See Curtis v. Dimaio, 46 F. Supp. 2d 206 (E.D.N.Y. 1999) where the plaintiff alleged that racially offensive jokes circulated to others, but not plaintiffs, evidenced discrimination. Other litigants may point to innocuous, inoffensive e-mails as evidence of discrimination. See Ellison v. Premier Salons Int’l, Inc., 981 F. Supp 1219 (D. Minn. 1997) where the plaintiff alleged that e-mail referring to his age and that he and “George Burns are an inspiration to the elderly” evidenced age discrimination. In another situation, an inventive employee created and sent sexually harassing e-mail to himself, but falsely claimed that his supervisor had sent the offensive e-mail messages. Resolution of this complaint ultimately required a detailed examination of the hard drives of both the employee and his supervisor. Today’s employment plaintiffs look to e-mail to provide the smoking gun in harassment and discrimination litigation. And, plaintiffs now routinely request and receive copies of all e-mails on their employers’ system, which might reference the relevant protected class, i.e., race, sex, or age. The effect of such e-mail evidence can be impressive: if a medium sized company has 50 employees, and each person has received three sexually explicit e-mails over the course of a year, a page by page exhibit with all 150 e-mails in hard copy can be convincing to a jury that a plaintiff has suffered discrimination or harassment. ADOPTING AN ELECTRONIC COMMUNICATIONS POLICY Smart employers are adopting electronic communications policies to minimize potential liability for their employees’ e-mail. These policies should contain several sections. First, employers should provide examples and describe prohibited communications. Specifically, employees might prohibit use of their electronic media for knowingly transmitting or viewing discriminatory, harassing, or derogatory communications about any individual or group, or any communications which are obscene, offensive, defamatory, or threatening. Second, employers should make clear that electronic media is provided primarily for employees’ business use, but that limited occasional or incidental use of electronic media for personal non-business use, such as the manner in which employees use the telephone, is acceptable. Importantly, employers should also remind their employees that their electronic mail is not private and may be reviewed by the employer at any time. To assure access to employees’ e-mail, employees should be prohibited from encrypting electronic communications and data unless specifically authorized to do so. Employees should also be told that it is against company policy to store large numbers of e-mail messages because of the potential problems they may pose to an employer’s network. In addition, because of the ease of transmission provided by e-mail, an electronic communications policy should advise employees that they must protect their employer’s trade secrets and confidential information, which should never be transmitted or forwarded outside the company to persons not authorized to receive such information. Finally, to ensure that an electronic communications policy is taken seriously, employees who abuse the privilege of the company-facilitated access to electronic media should face loss of that privilege and discipline. Electronic communications policies can be posted in the workplace, placed in the employee handbook, or both. Employers can require that employees sign a consent form acknowledging that they have no expectation of privacy in connection with their electronic communications and affirming their understanding that their e-mail may be monitored. As technology changes within a particular workplace, an employers’ electronic communications policy should be regularly reviewed to ensure that it makes sense with the current technology and the way it is used by employees. The policy should also be analyzed to ensure that it is consistent with other workplace policies, including, for example, those relating to sexual and other harassment, discrimination, confidentiality, non-competition, and privacy. MONITORING COMPLIANCE WITH THE POLICY Similarly, these other workplace policies should be examined to ensure that they cover the new issues posed by employee access to e-mail, the Internet and other electronic media. Not only should responsible employers monitor employees’ e-mail, but also such monitoring can be a defense to claims of employment discrimination. For instance, strong emphasis of an electronic communications policy’s prohibition against sexually or racially derogatory e-mails can demonstrate an employer’s commitment to its policy against discrimination and harassment. Regular monitoring of e-mail can, in turn, demonstrate than an employer does not tolerate discrimination and harassment, and can bolster an employer’s claim that an employee’s failure to use an internal complaint procedure to resolve a harassment claim is unreasonable. In general, and provided that employees have been advised that their electronic communications may be monitored, courts have given their approval to employers’ monitoring activities, and rejected claims that employer’s activities in policing their electronics systems is a violation of employees’ rights. See, e.g., Torain v. Siemens Rolm Communications, Inc., 172 F.3d 54, 1999 WL 65179 (7th Cir.), where the court rejected the employee’s claim that Siemens monitored his electronic mail to retaliate against him for filing a lawsuit; Smyth v. Pillsbury Company, 914 F. Supp. 97 (E.D. Penn. 1996), where the court upheld the termination of the employee for transmitting inappropriate and unprofessional comments over her employer’s e-mail system and rejected wrongful discharge claim. In short, e-mail and other electronic media has created new risks for employers. Accordingly, employers should ensure that their policies allow them broad authority to monitor employee communications and that these policies are sufficiently flexible and updated to cover the new situations posed by employees’ increased access to electronic communications. Cheryl Blackwell Bryson represents Fortune 500 companies in major labor and employment law matters and is a partner of Duane, Morris & Heckscher LLP. A former Deputy Corporation Counsel for the City of Chicago, Bryson earned her J.D. from The Ohio State University College of Law, where she was associate editor of the school’s Law Journal.

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