Court: Even ‘Unintended Harassment’ Can Be Illegal

by Mindy Chapman, Esq.

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 the boss. The subject of the e-mail: her genitals.

So, does this count as a hostile work environment, even though the e-mail was not sent to the woman and she was never intended to read it? Yes it does, the 10th Circuit court ruled.

“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 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 permission and stumbled upon a sexually charged e-mail conversation between two co-workers 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.” Ugh.

It didn’t help the dealership’s case that 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.” Ugh. Ugh.

Only one month later, the dealership placed Marla on a new compensation plan that would cut her commission rate. Eventually she resigned and filed an EEOC complaint claiming violations of Title VII of the Civil Rights Act of 1964. (EEOC v. PVNF LLC, 10th Cir., No. 06-2011, 5/14/07)

Here are three lessons learned:

•    With e-mail, “e” stands for everlasting evidence. Draft a policy (and train employees) to ensure that every worker knows to use e-mail for business purposes only. The message: Never write anything in an e-mail that you wouldn’t want shown on a poster in court.

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

•    Never blow off a complaint … ever. How you respond or fail to respond 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.


Mindy Chapman is an attorney and president of Mindy Chapman & Associates LLC. She is a master trainer, keynote
speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial.