A lot of corporations allow their employees direct access to the Internet. It is more than just a cliché when we say that the Internet has indeed changed the way nearly all enterprises do business. The burgeoning technology has revolutionized research and development, human resource management, product ordering and tracking, customer perspectives, and that much-needed area, the dissemination of information to employees and customers alike. I still do not have reliable statistics for the Philippines, but in the United States, the most recent survey indicated that more than 88 million workers are connected to the Internet at work.
The technology explosion has not only increased greatly the level of productivity in the work arena, but likewise, the exchange of information in the workplace. And it has triggered e-harassment claims of no mean dimension. The same survey revealed that 27 percent of Fortune 500 companies have fought sexual harassment claims based on the misuse by the employees of employer-provided e-mail and Internet access.
High-tech enterprises are not the only employers impacted by the explosion of technology in the workplace. The rapid and now widespread infusion of technology-wise productivity tools, which include e-mail and the Internet, has had great impact on how employers do business, and a significant effect on sexual harassment has also resulted.
All those old-fashioned traditional businesses, because of the increased productivity brought about by speedy and efficient means of communication, now do business, internally and externally, via e-mail, which has replaced the formally typed letters and inter-office memoranda. Employees choose to communicate with their co-workers right down the hall or even in the next cubicle via e-mail. The same survey fixed the number of e-mail messages sent per day in the US at two billion.
There is no doubt that, for a great number in the business world, e-mail has become a preferred mode of communication. Users tend to view e-mail as an informal form of correspondence where they can quickly compose a short message and instantly send it to any destination. Because of this, employees often feel free to express views that they would never put down on traditional paper, much less speak about over the phone.
For instance, an employee is much more likely to forward a dirty joke through e-mail than recount the risqué humor over lunch with co-workers. Whoever sends them would think twice before saying it to an audience, which includes females.
Employees look at e-mail as private communication between them and the recipients, and assume such correspondence will soon disappear following the transmission. What they overlook is the fact that e-mail may be more permanent than any traditional mode of communication, and records of e-mail exist in servers and corporate files long after it is generally assumed the message has been deleted. And an e-mail message can easily find its way to thousands – even millions – of unintended e-mail account holders.
Because of this, most plaintiffs, in establishing the legal basis for workplace harassment, have found e-mail records to be very useful. Fortunately for employers, and sadly for the female workers who feel revolted by the dirty e-mail, jurisprudence both in the Philippines and the US have found that e-mails with sexual overtones do not constitute harassment.
In the Philippines and the US, a single offensive e-mail message is generally not sufficient evidence to establish a hostile work environment. However, it is also generally recognized that such a single message, as part of a harassing pattern, could amount to pervasive evidence in a sexual harassment case. The e-mail messages produce a reliable trail for the plaintiff’s cause.
As early as 1998, in the case of Schwenn vs. Anheuser Busch Inc., a federal district court of New York ruled that a series of sexually graphic e-mails in a three-week span was not sufficient to create a "hostile environment in the workplace."
The plaintiff, a brewery warehouse employee, contended that she received sexually harassing e-mail through the computer terminal mounted on her forklift truck. She particularly testified that she received e-mails that said, "I want to eat you" and "I want to lick you," together with "Meet me at Aisle 50-B." The court ruled that although these e-mails may have been offensive and disgusting to the plaintiff, she had not been subjected to a hostile work environment, which warranted an actionable claim.
The widespread use of e-mail among Philippine and US employers all but guarantees that the misuse of technology will become an issue and a potentially big source of litigation.
We can even now discern that pervasive and prolonged misuse of an employer-provided e-mail system may result in tremendous litigation risks and substantial exposure even where evidence of a hostile work environment is limited to offensive e-mail messages. Employers may, in extreme cases, face the specter of class action arising from a hostile work environment created through the e-mail system.
Two US corporations, Dow Chemical and the New York Times Co., made headlines in 2000 by firing 64 and 24 employees, respectively, after discovering widespread use of the company e-mail to receive and distribute pornographic images and offensive jokes. In 2002, six employees of the Washington State Labor Department were terminated for excessive use of state-provided computers for personal e-mails, including e-mails of a sexual nature.
Studies reveal that more than 50 percent of employees in the US have received pornographic, sexist or racist e-mails at work. Forty-six percent of the employers in 2001 surveyed by the American Management Association reported disciplining employees for sending sexually suggestive or offensive material via office e-mail.
It is not surprising that employers across the US are facing allegations of pervasive e-mail-based sexual harassment. I know of two celebrated cases involving Chevron Corp. and Nationwide Insurance Inc. where the plaintiffs won their cases. Chevron was sued by four employees based on allegations of sexual harassment via e-mail. The e-harassment consisted of e-mail messages circulated by male co-workers, which included "25 Reasons Why Beer is Better Than Women." The case was settled in 1995 for $2.2 million for the plaintiffs.
Nationwide Insurance Inc. was sued after one of its supervisors in the legal department sent graphic e-mail messages to an employee stating his sexual desire for the plaintiff and evaluating her physical attributes. The lady employee won her case.
The Internet-based world would be greatly benefited if the following were undertaken by corporate enterprises:
a) defining a basic Internet use policy;
b) adopting an anti-harassment policy;
c) enforcing the anti-harassment policy and specifying the sanctions for its violation;
d) enunciating a specific e-mail policy;
e) instituting training programs; and, because many claims of sexual harassment stem from inter-office romances that have gone sour,
f) adopting dating policies among employees.
One thing is certain, the use and misuse of technology in the workplace is here to stay. E-harassment could certainly proliferate as technology spreads.