The risk isn’t new—e-mail has been around for a while. But managers and supervisors still continue to play fast and loose with their e-comments.
E-mail messages are increasingly finding their way into employment-law court battles.
“E-mail is a plaintiff’s best source of smoking-gun evidence,” says employment law attorney Joseph Beachboard of Ogletree Deakins.
Remember, employers aren’t allowed to simply wipe away their incriminating e-mail tracks. Whenever you believe litigation is “reasonably anticipated,” federal law requires you to place a “litigation hold” on any electronic communications that relate to any potential key players.
One solution: Remind managers in the hiring process that it’s typically better to pick up the phone or walk down the hall to discuss a candidate than it is to send an e-mail.
Recent case: Suzanne Salisbury, a black woman, applied to become a Pittsburgh city emergency medical technician. Her application showed the appropriate education and certifications. It also asked if she’d ever sued an employer. She answered “yes” because she’d been involved in a lawsuit related to union organizing.
Things went south when two of the hiring managers began exchanging e-mails about the candidate. “Don’t interview her. She is bad news,” one wrote. “She sued a former employer and has all kinds of financial problems,” the other wrote.
Salisbury wasn’t hired and sued for race and sex discrimination. She was able to access the managers’ e-mails as part of her e-discovery request before the case went to trial.
She argued that her earlier lawsuit was protected activity and should not have been used against her in hiring. And while Salisbury acknowledged filing for bankruptcy, she noted that Pittsburgh had hired white men with bankruptcy records.
The court sent her case to a jury trial. There, Salisbury will be able to argue that the e-mails show prejudice against her because she was involved in past protected activity and that the managers had a racially biased view of financial problems. (Salisbury v. City of Pittsburgh, No. 08-CV-0125, WD PA, 2010)
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