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E-mail harassment: "E" stands for E-verlasting E-vidence

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Question: Try this on for gross. A female employee gains access to her boss’s e-mail account without permission and discovers a vulgar e-mail sent by a male co-worker to her male boss. The subject of the e-mail: her genitals.

So, does this create an illegal hostile work environment, even though the e-mail was not sent to the woman and she was never intended to read it? Yup, ruled the court.

“We have never held, nor would we, that to be subjected to a hostile work environment the discriminatory conduct must be both directed at the victim and intended to be received by the victim,” said the court. “The fact that (she) was not the intended recipient of the e-mail is of no consequence.”

Case in Point: Marla Segovia worked as a new-car sales manager at a New Mexico auto dealership. Following a confrontation with a co-worker, Segovia went into her boss’s e-mail account without authority and stumbled upon a sexually charged e-mail conversation between the co-worker and another employee that had been forwarded to her boss. The e-mail discussed Marla’s private parts. Marla complained to her supervisor, who reprimanded the two employees.

Shortly after, one of the disciplined employees sent Marla an e-mail asking her why she couldn’t “take a joke.” When Marla again complained to her boss, he responded by telling her to ”get back to work." Ugg.

Only one month later, Segovia was disciplined for being late to work. At that same time, the dealership placed her on a new compensation plan that would reduce her commission rate. Eventually she resigned and filed a complaint with the EEOC claiming violations of Title VII of the Civil Rights Act of 1964. (EEOC v. PVNF LLC d/b/a Big Valley Auto & Chuck Daggett Motors, 10th Cir., No. 06-2011, 5/14/07) Read the court’s full harassment ruling by clicking here.

What does this new ruling mean to you?

While the auto dealership agreed that the e-mail was “vulgar and offensive,” it argued that it wasn’t evidence of harassment or discrimination “because Ms. Segovia was never intended to see it.“ The court said it ”heartily disagreed“ with this argument.

It didn’t help the dealership’s case that the EEOC was able to show evidence that one of the owners ”frequently made indisputably gender-related remarks and tolerated the use of the word ‘bitch’ to describe Segovia.“ The owner’s defense? They only used that word to describe her ”over bearing“ behavior. Not a good answer. The owner also allegedly declared, ”I don’t want a whole bunch of damn women working here. Men don’t like to work with women." Ugg. Ugg.

Lessons Learned ... Without Going to Court

  • Have a sound e-mail policy that is consistent with your anti-harassment policy. Both should discuss prohibitions against e-mails of a sexual nature.

  • Train everyone on your e-mail policy. E-mails are everlasting evidence and legal documents. Make sure they are used for business purposes only. Tell employees to never write anything in an e-mail that they wouldn’t want shown on a poster in court.

  • Remember to train bosses, too. Attitudes from the top roll down to managers, supervisors and employees. Educate bosses that what they say and write can and will be used against them. Bosses also need to know they could face personal liability, in addition to corporate liability.

  • Never blow off a complaint. Never. How you respond, fail to respond or if you give some snappy answer will always be part of any harassment lawsuit. Make sure you thank employees for stepping forward and reassure them you will take prompt, effective action. Then start an investigation.

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