A) The following material is found in the Ceridian Human Resource Compliance Reference System:

Harassment and discrimination through electronic communication.

The use of e-mail, voicemail, instant messaging programs, electronic employee bulletin boards, and other forms of electronic communication in the workplace may encourage employees to make potentially offensive statements. Employees have a tendency to use e-mail to disseminate inappropriate jokes or to play pranks on co-workers, even though the jokes and pranks are intended in good fun. Such conduct has the potential to offend or to create a hostile work environment, leading to charges of harassment.

Hostile work environment sexual harassment exists when an employee is subjected to verbal or physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. Although the hostile work environment claim first arose in the context of sexual harassment, courts have also recognized claims of non-sexual harassment based on other protected characteristics such as age, race, and disability.

From an employer’s perspective, the very nature of electronic communications can magnify the potential liability for e-mail or voicemail harassment in the workplace. Unlike personal communications, there will almost always be a record of e-mail and voicemail messages, stored either by the employee or by a backup system or both, thus leaving a trail of evidence confirming the existence of a hostile work environment. Given the ease of discovering and obtaining copies of such communications through litigation, the potential for discovery of a “smoking gun” is increased. A number of sexual harassment or sex discrimination lawsuits have been caused, at least in part, from inappropriate e-mail or voicemail communications.

Plaintiffs have also relied on electronic communications records to support race, age, retaliation, and other types of harassment and discrimination claims. Other employees have asserted related claims for negligent or intentional infliction of emotional distress and other common law damage claims based in part on conduct related to electronic communications. To avoid such litigation, employers should train employees to use electronic communications appropriately, emphasizing the unique aspects of e-mail and voicemail systems that may heighten the risk of harassment and discrimination claims. In addition, employers should forbid all employees from making threatening, harassing, or offensive comments via e-mail or voicemail. Employers may also wish to initiate lawful monitoring procedures to determine if harassment has taken place by tracing the harassment through the electronic system.

(Editor’s Note: This article is reprinted courtesy of the Ceridan Newsletter.).