Sexually Explicit E-mail Spam is More Than Just a Nuisance

Settlements in two separate lawsuits this month again raise an issue of concern to many employers. With the growing number sexually graphic e-mails in workers' in-boxes becoming harder to control in today's work environment, the question must be addressed: is an employer liable for a hostile work environment caused by a never-ending barrage of sexually explicit e-mails?

It's a delicate question, and one that courts are addressing around the country. In Minnesota earlier this month, a public library settled a hostile work environment case brought by a dozen librarians complaining that the prevalence of sexually graphic images on computers at the library created a hostile work environment. The $435,000 settlement also requires new Internet filtering software to be installed on the computers to lessen the likelihood of graphic images appearing in a "public" forum.

In England this week, a sales administrator at a financial advisory firm won a $15,000 settlement against her employer because of obscene e-mails that were circulating around the firm about her.

The question of employee-to-employee harassment seems a straightforward one. Every organization needs to have both a sexual harassment policy in place as well as a proper e-mail policy in place, and enforce each rigorously.

The question of whether an employer can be held responsible for failure to stop graphic e-mails from coming in to an employee's work e-mail address is a little more tricky. Courts are putting more responsibility on the employer to ensure that every reasonable effort is being made to filter out the graphic images that are proliferating on the Internet at record speed. Despite the fact that almost all of these e-mails represent unwanted "spam," it is ultimately the employer's responsibility to take measures to limit the problem.

"Just as an employer has a duty to protect from patrons and other people--like the (delivery) guy who fondles a secretary--there's a good theory saying a company has a duty to filter (offensive e-mail) even if the employees are being harassed entirely from far outside the company walls," says Eugene Volokh, a professor of law at UCLA. "If the employer is reasonably capable of filtering the material, and if it doesn't do that, it would be held liable."

Simply the fact that unwanted e-mails appear on an employee's computer doesn't, by itself, constitute a hostile work environment issue. But if employees complain about it to management and management fails to take appropriate steps to curb the problem, then a hostile work environment case has a lot more merit.

The financial risks to a company are real. Employees can sue for compensatory and punitive damages up to $300,000, depending on the size of the company.

This week, Network Associates launched its new McAfee SpamKiller Appliances to protect customers from spam. There are many other products on the market which can be found easily on search engines. Contact your ISP or your network administrator for additional information.

Want to learn more? An excellent article entitled "Porn Spam: Are Employers Liable" written in April 2003 is available through ZDNet.

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