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In a groundbreaking June 1 decision, the New Jersey Supreme Court expanded the realm of employer liability into cyberspace. A unanimous Court held in Blakey v. Continental Airlines, A-5-99, that an employer who has notice that employees are engaged in a pattern of retaliatory harassment using a work-related online forum has a duty to remedy that harassment. The decision means that Tammy Blakey, the female Continental Airlines pilot who won a landmark 1997 sexual harassment suit against the airline in federal court, can pursue state-court claims for damages for alleged derogatory comments co-workers made about her on an online bulletin board used by Continental employees. The action asserts claims for defamation, sexual harassment/hostile work environment under the Law Against Discrimination, business libel and intentional infliction of emotional distress, and names as defendants Continental and six pilots charged with exchanging derogatory comments online. Paula Branter, the senior staff attorney for the San Francisco-based National Employment Lawyers Association, says she is unaware of a comparable holding by any other court in the United States on a claim of sexual harassment that involves e-mail or the Internet. The forum at issue was a CompuServe electronic bulletin board known as the “Crew Members Forum.” The forum was maintained by CompuServe as part of a package that provided online access to an internal Continental site that pilots and crew members were required to consult for their schedules and flight assignments. In its ruling, the New Jersey Supreme Court took into account the reality of an Internet-linked world in holding that employees who transmit defamatory electronic messages with knowledge that those messages will be published in New Jersey and could influence a claimant’s efforts to seek a remedy under the LAD can be subjected to the jurisdiction of New Jersey courts. Because the Court found the record inadequate to determine whether the electronic forum was work-related and with respect to the facts pertaining to jurisdiction, it remanded for discovery on these issues. The plaintiff’s attorney, Linda Kenney, says the decision “should take away the fear that just because it’s the Internet, basic principles of liability don’t apply.” Kenney, a partner in Red Bank, N.J.’s Kenney Schaer & Martin, says the ruling will be the “lead case across the United States on when a company has liability for an Internet-sponsored site.” Continental’s attorney, Robert Bernstein, of Newark, N.J.’s Epstein Becker & Green, did not return telephone calls seeking comment. Ellen Boyle, an associate in the Summit, N.J., office of New York’s Satterlee, Stephens, Burke & Burke, who represents five of the six pilots, says once the plaintiff takes further discovery allowed by the Court she intends to move again for summary judgment on jurisdiction. As a starting point for the Court’s analysis, Justice Daniel O’Hern declared that because “[c]onduct that takes place outside the workplace has a tendency to permeate the workplace,” the fact that the electronic bulletin board might be located outside the workplace, was not enough, standing alone, to relieve an employer of any duty to correct harassment by fellow employees. The Court recognized that the forum created a “virtual community,” and an extension of the workplace in which “relations among employees are cemented and sometimes sundered.” If an “old boys’ network” at the workplace continues in an after-hours setting, “the outsider (whether black, Latino or woman)” who becomes the target of a harassment is left to “keep swallowing the abuse or give up the chance to make the team,” wrote O’Hern. If the plaintiff could prove she gave Continental notice of the comments, its liability “will depend on whether the Crew Members Forum was such an integral part of the workplace that harassment on [it] should be regarded as a continuation or extension of the pattern of harassment that existed in the … workplace,” O’Hern said. On remand, the Court instructed, the trial court should determine “whether Continental derived a substantial benefit from the overall relationship among CompuServe, the Forum and Continental” and whether there is a triable issue of fact concerning whether the forum was “sufficiently integrated with the workplace” to require an employer response. The trial court was also directed to take into account the number of crew members who subscribed to CompuServe. It appeared “likely” to the Court that crew members subscribed because it gave them access to the forum and that employees’ ability to access the service and communicate with each other benefited Continental by improving efficiency and operations. Though outsourced to CompuServe, the forum was equivalent to an in-house network or intranet. Liability would also be affected by Continental’s response to learning that the site was being used for harassment, said the Court, stating “[e]ffective remedial steps” could provide an affirmative defense to liability. Acknowledging that “grave privacy concerns are implicated,” O’Hern emphasized that decision did not mean that employers have a duty to monitor employees’ mail, only that they “may not disregard the posting of offensive messages on company or state agency e-mail systems when the employer is made aware of those messages.” Though Continental management was not permitted to use the forum at issue in Blakey, Continental might still have had knowledge of the content of certain postings, said the Court. In her 1997 federal suit, Blakey was awarded $875,000 in back pay and damages based on her claims that the presence of pornography in the cockpit created a hostile working environment. In February 1998, U.S. District Judge William Bassler granted a defense motion for remittitur, slashing the $500,000 emotional distress portion of the damages in half, on the ground that there was no adequate expert testimony that Blakey’s emotional condition resulted from the pornography. Blakey has not yet collected any portion of the remaining $620,000 judgment or the $1.1 million in attorneys’ fees, costs and prejudgment interest also awarded her by the federal court. Whether she can collect the award in the face of Continental’s bankruptcy at the time it was rendered is still pending before the courts. The chat room comments at issue in the state court proceeding allegedly commenced in 1995, in the midst of the federal litigation. The messages criticized Blakey for bringing the federal suit and attacked her abilities as a pilot, accusing her of being a “feminazi,” using the litigation to justify her inadequacies as a pilot and abusing the legal system “to get a quick buck.” Blakey alleged she gave Continental notice of the comments as early as March 1995 by forwarding copies of offending “threads” — a series of messages — to Continental’s counsel and Kenney says that she sent them to Bernstein. In August 1995 Blakey tried to amend her federal complaint to allege retaliation and defamation based on the comments but was denied leave to amend. On April 3, 1997, New Jersey Superior Court Judge Julio Fuentes dismissed claims against the pilots for lack of personal jurisdiction and dismissed claims against Continental on the basis that it was not vicariously liable for its employees’ statements. A subsequent motion for summary judgment dismissing the hostile environment claim against the airline was granted by Superior Court Judge Peter Vazquez on Dec. 12, 1997, on the basis that the forum was not a workplace. An Appellate Division panel affirmed both rulings on June 9, 1999. Neil Mullin, who represents plaintiffs in discrimination actions, sees it as “appropriate for a private entity — though not the government — to limit what’s said where women and minorities are trapped audiences,” as in a workplace forum. “There is always a tension between certain aspects of sexual harassment law and the First Amendment,” he acknowledges, a tension resolved, however, “by taking note that the workplace is a limited environment where employees cannot at will excuse themselves.” Mullin, a partner in Smith Mullin in Montclair, N.J., applauds Blakey as “bringing discrimination law into the dot com era” and as a “logical extension” of the principles set forth in Lehmann v. Toys ‘R’ Us, 132 N.J. 587 (1993). The jurisdictional aspect of Blakey — which the Court terms “the more difficult issue” — concerned whether the court had personal jurisdiction over the defendant pilots who neither resided nor were based in New Jersey. Relying on the fundamental principles of in personam jurisdiction, “based on concepts of power,” the Court held that the pilots had the requisite minimum contacts with New Jersey under International Shoe Co. v. Washington, 326 U.S. 310 (1945), if their statements were “capable of a defamatory meaning and were published with knowledge or purpose of causing harm to plaintiff in the pursuit of her civil rights in New Jersey.” In its minimum contacts analysis, the Court emphasized, “the means by which the message is communicated is not as important as the quality of her contact,” remarking it “would be a paradox if electronic communications, with their instantaneous messaging, would lessen the jurisdictional power of a state.” The Court drew an analogy to an offending communication placed in the New York Times, which could create a basis for personal jurisdiction. Regarding the other aspect of personal jurisdiction — whether its assertion affects traditional notions of “fair play and substantial justice” — the Court found that “the center of gravity of this employment dispute was in Newark, New Jersey” and “the effect of retaliatory falsehoods on the worker could reasonably influence the anti-discrimination policies of the forum by deterring her resolve.” In the absence of evidence concerning whether the individual defendants knew at the time of their statements that Blakey was pursuing her action in New Jersey and that the statement would be published in New Jersey, the Court found it could not decide whether it was fair to invoke New Jersey jurisdiction over them. Discovery was needed to resolve these questions. Cynthia Jacob, who represents management in employment matters as a partner in Somerset, N.J.’s Collier Jacob & Mills, does not share the opinion of attorneys on the other side of the fence that Blakey will have much precedential value, characterizing it as sui generis. In the five years since the events at issue in the case, she points out, the Internet has changed and “employers are much more savvy.” Continental probably no longer relies on CompuServe but likely has its own integrated e-mail system, she says. The former State Bar president also notes that the Court has merely remanded and has issued as yet no final ruling on Blakey’s claims.

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