In the age of e-mail, instant messaging and other written but ephemeral forms of communication, it’s easy to be caught off guard when an employee claims sexual harassment via the company computers. If an employee says she’s received hundreds of sexually explicit e-mails from co-workers or others associated with the company, could you prove her wrong?
Advice: Automatically back up all e-mail that comes across your organization’s computer network. Warn employees that all use of company equipment is considered to be for business purposes, and that—at its sole discretion—the organization may monitor and back up all e-mail and electronic communications.
That policy serves two purposes. First, by asserting the right to read and copy any electronic communications, you will discourage sending sexually or otherwise offensive e-mail or communications using company computers. Second, if you are sued, you will be able to counter claims with the confidence that you can push the employee to produce those e-mails she says were so offensive.
Recent case: Tonya Orrell sued her former employer for sexual harassment and claimed she had received “hundreds” of sexually explicit, pornographic and offensive e-mails from co-workers and customers via her company e-mail account.
As the case began, the employer pushed her to provide copies of those e-mails, probably believing that she was exaggerating. Orrell’s response to its request must have caught the attention of a few attorneys. She said she couldn’t produce the e-mails because her husband had “wiped” her company laptop—that is, erased all its files—for security purposes.
As the case moves on, it will be interesting to see whether a jury finds Orrell’s explanation credible. If the company can show it routinely backed up e-mails yet can’t find any of the messages Orrell alleges, and Orrell herself can’t produce the messages, she will probably have a hard time convincing a jury that she was harassed. (Orrell v. Motor Car Parts of America, No. 3:06-Cv-418, WD NC, 2007)