Increasingly, courts hearing discrimination cases order employers to turn over e-mails and text messages. These communications may include correspondence employees may have sent or received from clients and customers.
One reason is that federal court rules on electronic discovery now require employers to retain vast amounts of information for use in litigation. Until recently, this information simply wasn’t available to litigious employees and their lawyers. It wasn’t too long ago that employees still used a telephone for most day-to-day communication. And until a few years ago, companies regularly deleted e-mail records from computer systems. Now discrimination, harassment and hostile work environment litigation often includes e-mail and instant-message evidence.
That’s why all employees need to understand that their communications aren’t private. Tell them: If you wouldn’t want your mother to read the message on the front page of the newspaper, don’t send it.
Recent case: Claudia Quinby sued her former employer for sex and age discrimination. She claimed she had been denied two bonus payments because of her gender and because she had previously complained about discrimination at the company.
She asked the court hearing her case to allow her to use e-mails and instant messages at trial. Those documents, obtained during discovery, included messages sent among co-workers, and also to and from clients and customers. Allegedly, the messages included crude jokes, comments about female employees and minorities, and social plans.
The court said any e-mails or instant messages that mentioned Quinby, her performance or the ability of women to perform their job duties were fair game and could be presented to the jury. (Quinby v. WestLB, No. 04-CIV-7406, SD NY, 2007)