The Dark Side of Employee Email

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The combination of email, an increasingly common form of corporate communication, and sexual harassment lawsuits in the U.S., a negative byproduct of corporate communication, represents a new source of legal and financial risk for employees and employers alike.

Here, we look at email as a means of carrying out sexual harassment in the workplace in light of the U.S. legal definition of “sexual harassment” and “sexually harassing environment,” illustrating our findings with email-related sexual harassment lawsuits in U.S. workplaces. These cases should help managers assess the risks their own organizations might face should their email systems be used for sexual harassment on their premises.

In 1995, the number of email-using employees in the U.S. was estimated at more than 23 million, with three times that number projected for 2000 [8]. At the same time, sexual harassment claims were increasing. Workplace sexual harassment is regarded by at least some legal scholars as “one of the most pressing organizational concerns of the 1990s” [5]. Not surprisingly, the use of email to sexually harass someone at work and other forms of abuse have also increased. A 1993 survey found 52% of the 189 responding businesses had experienced email-related abuses, double the number reporting such abuses in 1991 [10]. Further, results of a survey prepared by the FBI in 1996 and conducted by the Computer Security Institute, a San Francisco-based educational organization for computer security professionals, found 31% of 563 responding businesses had incurred financial loss from employee misuse of the Internet, including email, for sexual harassment [6].

One of the largest judgments in a sexual harassment and discrimination case, Scribner vs. Waffle House Inc. (1997), totaled $8.1 million. Even if a case of alleged sexual harassment is defended successfully, the organization may still incur significant litigation costs, lowered employee morale, reduced employee productivity, and negative publicity. The personal effects on victims of workplace sexual harassment, identified in various research studies, have included insomnia, depression, nervousness, headaches, backaches, nausea, loss of appetite, weight change, and fatigue (see the sidebar “I’ll See You in Court”).

Sexual discrimination in private-sector employment did not become illegal in the U.S. until enactment of Title VII of the Civil Rights Act of 1964, which stated, in part: “It shall be an unlawful employment practice for an employer:

• “To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual’s race, color, religion, sex, or national origin; or
• “To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin (42 U.S.C. 2000e-2(a), 1988).”

However, neither the act nor its legislative history defined “sex discrimination.” The substance of what is sex discrimination, and more specifically, sexual harassment as a form of sex discrimination, continues to develop through judicial decisions and U.S. Equal Employment Opportunity Commission (EEOC) regulations. The regulatory definition of sexual harassment, including hostile environment, is:

• “Harassment on the basis of sex is a violation of the law. Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
• “Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
• “Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
• “Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment (29 Code of Federal Regulations (CFR) 1604.11(a)).”

This definition, including “hostile environment,” was recognized by the U.S. Supreme Court in Meritor Savings Bank vs. Vinson (1986). In examining sexual harassment cases, two types of harassment have been identified. The first, termed “quid pro quo,” describes situations in which employees receive sexual demands to obtain or retain their jobs or to obtain a promotion or other employment-related considerations. In the second type, termed “hostile environment,” the harassment is less direct. Elements present in the workplace make it unpleasant or difficult for the employee to carry out his or her job responsibilities. Regardless of the type, sexual harassment is recognized legally if certain basic issues are present; among the more common are when the conduct is: sexual in nature; unreasonable; severe or pervasive in the workplace; and unwelcome.

Such conduct can take several forms; one of the more recognized involves electronic means, including email. Table 1 outlines the types of sexual harassment and the ways it might occur. Here we focus primarily on the Table’s upper-left quadrant, electronic communication, specifically email, as it contributes to a hostile environment.

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Sexually Harassing Content Via Email

Although email has been viewed as a means of improving personal productivity and organizational responsiveness, these benefits have a dark side for employees and their employers. The use of email, which has reduced the situational context cues providing information about organizational hierarchy, position, status, departmental affiliation, relationships, and the personal meaning and implications of interaction, can alter accepted conventions in organizational communication.

In the absence of such cues, email users become less constrained in their communication. Empirical research suggests the content of email is more likely to be irresponsible, in that it may include profanity and negative sentiment, than the content of face-to-face communication [11]. Further, the same research found 40% of email correspondence is totally unrelated to work. In a comparison of email and conventional paper responses, email communication was also found to evoke more extreme, more revealing, and less socially desirable content. The very existence of “flaming,” harsh criticism, and insults suggests that inhibitions consistent with the norms of interpersonal communication are often relaxed during electronic interaction.

Robert L. Mirguet, information security manager at Eastman Kodak Co., Rochester, N.Y., in 1995, said that “people are much more threatening in email notes” than face-to-face [1]. Although Mirguet reported that email abuses in Kodak were rare, sexual harassment was the primary form of email abuse at the company. Legal experts, such as Michael J. Patrick, a partner at Fenwick & West, Palo Alto, Calif., have found that “many [email messages] contain ill-considered, uninformed, off-the-cuff, offensive, obscene, or startlingly candid comments that expose the company to liability” [4].

Two distinct characteristics of email create a communication environment in which users feel they are free to express themselves and disclose personal feelings and sensitive information. First, email is conveyed in the form of text by a person physically removed from the recipient. The usual situational cues, such as corporate letterhead, voice inflection, and body language, present in traditional forms of communication, such as memos, letters, telephone calls, or in-person conversations, are absent in text-based email messages.

The other is that messages are erroneously viewed as ephemeral, since they appear and disappear from the screen. The fleeting nature of these messages results in reduced commitment to what is communicated and a greater sense of freedom in expression and self-disclosure, even when the message is disseminated to a large audience. Email communication has been described as fostering detachment and diminished ethical awareness. More people are likely to plan wording and content carefully when communications are committed to such physical media as paper than when sending email, which seems to lack permanence. Another common misconception among users is that deleted messages are erased from the system. But system backups are performed routinely. And even if backed-up messages are deleted, files can be expertly recovered, including those that are overwritten and even those stored on reformatted media.

Lacking contextual cues, the interpretation of email content is subjective. Recipients may react to message content differently from the way they react to more traditional forms of communication. Compounding the potential for misinterpretation is the informal nature of the messages, which are often composed offhandedly, with abbreviations and cryptic statements used to alleviate the inherent slowness of typing. In message composition, “choosing words well is essential, because the potential for misunderstanding is enormous” [2]. Nonetheless, the reader may misconstrue the intended meaning, resulting in a different interpretation from what the sender intended. Since the recipient is separated from the sender geographically and possibly temporally, dynamic feedback is not available. The sender does not have an opportunity to evaluate how well the message is understood and provide clarification or further information.

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Inhibitions consistent with the norms of interpersonal communication are relaxed during electronic interaction.

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Effective Email Policy

Anticipating the potential for claims of sexual harassment via email, organizations formulating email policy have two primary concerns: prevent inappropriate use and reduce exposure to liability. Therefore, corporate policy should include statements that restrict use to business only, prohibit inappropriate language and conduct, reserve the right of the organization to monitor communications, and provide guidelines for deletion, backup, and retention of messages. Email’s unique technical and social characteristics, which can increase the risk of sexual harassment claims, should be emphasized.

Although there is no count today of the number of organizations with an email policy, a survey conducted in 1995 by the Society for Human Resource Management, Alexandria, Va., revealed only about 33% of its respondents had devised a written policy or provided training concerning its use. Of 538 responding organizations, only 36% of those using email had written policies, and only 34% provided training on proper and improper use. However, more recently, organizations have been addressing sexual harassment in their email policies. For example, Kmart Corp., Troy, Mich., revised its written policy to prohibit employees from accessing sexually oriented messages or images from the Internet or emailing such material. Hallmark Cards, Inc., Kansas City, Mo., also modified its policy to specifically cite the threat of lawsuits and warn employees against:

• Gossip, personal information about yourself or someone else, and emotional responses to business memos
• Insensitive language and derogatory, offensive, or insulting remarks
• Harassment of others, including sexual harassment or any remarks that may be misinterpreted as sexual harassment

Thorough and well-drafted policies are ineffective if not widely and repeatedly communicated, with education, training, and retraining sessions to ensure employee comprehension and up-to-date knowledge of practices in light of advancing technology. Employers should also initiate internal procedures, such as monitoring and filtering of messages, to ensure continued compliance with corporate standards. Alternatively, less-controversial methods may be considered. For example, user interaction could be tempered through a subtle reminder when users logon, such as a pop-up screen outlining proper online etiquette, usage rules, and company policy regarding email use, as done at Booz-Allen & Hamilton, Inc., McLean, Va.

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Conclusion

In the cases of sexual harassment via employee email described here, the companies’ own internal records provided some of the legal evidence used against specific employees and the company itself in court. Indicative of the seriousness of such email abuse is the increasing number of lawsuits dealing with email in workplace sexual harassment. As technology, such as Internet access, becomes increasingly sophisticated, opening the door to a vast array of sexually explicit digitized content on the World-Wide Web and bulletin boards, email is likely to become more sexually explicit. Indeed, email-related litigation, including abuses, such as sexual harassment, is one of the fastest growing areas in employment-related civil litigation in the U.S. The financial liability of employers over their employees’ email content can be substantial. In the Chevron case, for example, the company ultimately agreed to pay $2.2 million as part of an out-of-court settlement.

Advancing technology and the potential for associated abuse appear to have outpaced most employers’ ability to manage their technological and human resources, as revealed by the small percentage of companies with formal email policies. Since employers are responsible for managing their own resources, including employee actions and storing of email messages, they have to prepare for all possibilities. However, the responsibility for reducing the risks associated with email communication belongs not only to employers but to their employees as well.

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Table. Example cases in the U.S. of employee sexual harassment via email.