A growing avenue for sexual harassment claims is via email. It may become an even greater threat to an employers bottom line based on recent U.S. Supreme decisions. While most employees have been trained or are aware of potential improper behavior, they do not view email as an avenue for harassment and tend to treat their messages or messages passed on from another source, more casually.

In Faragher vs. City of Boca Raton and Burlington Industries Inc. vs. Ellerth, the court made employers liable for the wrongful action of supervisors, even if the employers were unaware of specific actions. This means that companies that don’t take additional steps to actively prevent sexual harassment will open themselves up to larger damage awards.

Quoted in a July 12, 1998, Seattle Post Intelligencer article, Clif Finch, general counsel and governmental affairs director for the Association of Washington Business, stated it won’t matter whether a company has a good policy in place “because now there’s going to be a question of whether in fact you’re implementing it well enough.”

The pervasiveness of email and the growing number of complaints make content security an area of vulnerability for all corporations. According to a Society for Human Resource Management 1997 member survey, 86 percent said their organizations use email, 6 percent have been requested to produce emails involved in lawsuits and 22 percent have received employee complaints about emails inappropriate for the workplace. At the same time 73 percent do not offer Web training and 70 percent do not have a written Web usage policy.

Many possible email activities easily fall into the Equal Employment Opportunity Commission’s definition of sexual harassment: “harassing conduct includes but isn’t limited to epithets, slurs, negative stereotypes or threatening, intimidating or hostile acts that relate to race, color, religion, gender, national origin, age or disability.”

There are several cases pending in U.S. courts where email is either at the center of the suit or used as supporting evidence including ones against Microsoft; King County, the Minneapolis Community Development Agency; Nationwide Mutual Insurance; and Calsonic international, Inc. Four female employees received a settlement of $2.2 million from Chevron Corporation, where the women claimed to have been subjected to offensive email.

“Developing a comprehensive content security policy for employee Web and email usage is an important first step in limiting bottom line risk,” explained Victor Woodward, vice president, Content Technologies. “But as recent Supreme Court rulings open the door to greater culpability, companies need additional weapons to defend against offensive and damaging email content. The ability for companies to do this is further complicated by the Electronic Communications Privacy Act that prohibits the unauthorized interception of electronic communications including email. We recommend a five-pronged approach to limiting corporate liability and enhancing content security: devising an email policy, attaching disclaimers to outbound emails, providing a content security product on your network, training your employees on Web policy and purchasing a Web insurance policy.”

The company offers a software product, MIMEsweeper, that can filter, monitor and quarantine email with company-designated key words and phrases typically used in harassment. Such a proactive approach allows the company to protect its employees, and demonstrate to the courts a commitment to offer a harassment-free workplace. In addition, by having the program automatically put a legal disclaimer on outbound email, the organization is limiting its own liability on the content of all email sent out.