the hostile workplace

by John Nicholson

John Nicholson is an attorney in the Tech-nology Group of the firm of Shaw Pittman in Washington, D.C. He focuses on technology outsourcing, application development and system implementation, and other technology issues.

<[email protected]>

In last issue's column, I discussed the concept of a "hostile workplace" and the need for companies to monitor the behavior of their employees. Having introduced the concept, I'd like to take this opportunity to discuss workplace harassment and explain something that frequently confuses people about freedom of speech (and other Constitutional rights). While this topic is not directly related to computers and technology, it is something that managers need to know and understand.[1]

Reader Questions

Before we get to the hostile workplace, however, a reader of the last issue's column noted that although I discussed the rights (or lack thereof) that an employee of a company has with regard to privacy of computer files stored on company computers and sent through the company network, I did not address any right to privacy or other rights that a third party (nonemployee) sender of an email message might have regarding how that message is treated.[2]

As I discussed in the April issue, Title 18 Section 2701(a) makes it a crime to access a system without authorization and to obtain, alter, or prevent authorized access to a wire or electronic communication while it is in electronic storage in such system,[3] except that "Subsection (a) of this section does not apply with respect to conduct authorized — (1) by the person or entity providing a wire or electronic communications service; (2) by a user of that service with respect to a communication of or intended for that user."[4] This language means that if you send an email message to a person, then any company whose network that message passes through can probably access and store that message, including, if you send the message to the person's work address, the recipient's employer. If the recipient then stores the message on a computer provided by the employer, then it would be just like the employee receiving a written letter and putting it in the company's files.

What Is Harassment?

Harassment is employment discrimination consisting of unwelcome verbal or physical conduct (such as comments, jokes, or acts) relating to the victim's constitutionally or statutorily protected classification (such as race, religion, gender, ethnic origin, or age) that has the effect of substantially interfering with a person's work performance or of creating a hostile work environment.[5]

According to the courts, speech in the workplace can be punished as workplace harassment if it:

is severe or pervasive enough to create a "hostile work environment"
is based on criteria including, but not limited to race, religion, sex, national origin,[6] age, disability (including obesity),[7] military membership or veteran status,[8] or, in some jurisdictions, dishonorable discharge from the military,[9] marital status,[10] family responsibilities,[11] sexual orientation,[12] personal appearance,[13] cross-dressing,[14] political affiliation,[15] criminal record,[16] citizenship status,[17] student status ("matriculation"),[18] receipt of public assistance, [19] or even smoking or use of tobacco outside the course of employment [20]

for the plaintiff and for a reasonable person.

Prior to the advent of email and the Internet, employers and employees did not have as much to worry about (although many of the "hostile workplace" cases come from the era before email and the Web). It was more difficult for speech or other behavior to be sufficiently "severe or pervasive" to create a hostile workplace. Employees had to actually tell each other jokes, either one at a time or in groups, or make copies of cartoons by hand. Employees could not email jokes, pictures, executables, links to Web pages, etc., around the company.

Now, however, the ease and speed with which information can be sent to multiple people (and sometimes the wrong people) creates a situation ripe for workers to be offended by their co-workers' sense of humor. Additionally, the casual and spontaneous nature of email may allow employees to write things that are disseminated beyond their intended audience and could be taken out of context. Moreover, the seeming privacy and anonymity of email and the Internet makes some people do or say things they would not do or say if they thought they might be seen or overheard by a third party. Unless employers can show that they have policies in place that prohibit such behavior and take action against those who violate such policies, employers can be held liable for substantial damages.

What Is "Freedom of Speech," and Does It Apply to Companies?

When a company places limits on what employees can say or wear or what posters they can put up, employees frequently claim that such rules are a violation of their right to free speech. Since the company is telling them what they can and cannot say, this seems to be true. At the same time, however, companies are being held liable for the behavior of their employees when the employees create a hostile workplace. This apparent conflict causes a great deal of confusion in the workplace. Frequently, neither the employees claiming the right to freedom of speech nor the person writing the corporate policy prohibiting harassment understands precisely what rights to "freedom of speech" are granted by the Constitution.

The First Amendment to the U.S. Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."[21]

The key language in the First Amendment is the first five words — "Congress shall make no law." The thing that many people do not realize about the Constitution is that it only controls what the government can do. Thus, on private property, generally, as long as the restrictions are applied to all employees equally, a company can impose whatever regulations on speech or expression (putting up posters, etc.) it wants without violating an employee's constitutional rights.

What Should an Employer Do?

1. Develop a written harassment policy statement. This policy statement should begin by stating that harassment is illegal and will not be tolerated. The policy statement may further include the employees' right to work in an environment free from harassment and from retaliation for reporting harassment, the fact that harassment is a violation of state and federal law, identification of specific behaviors that constitute harassment (like those noted above), and an outline of consequences for engaging in harassing behavior.

2. Communicate the policy by posting it in the workplace and including the policy in employee handbooks or policy manuals.

3. Develop procedures that will be followed upon filing a claim of harassment and identify the person(s) to whom the employee should report the harassment.

4. Finally, charge employees with the responsibility to report any harassment or other discriminatory practices.

You Hear So Many Ridiculous Stories . . .

Just like many of the stories of children being suspended from school for bringing aspirin or a squirt gun that looks too realistic, there are lots of stories about people objecting to things that seem harmless but that employers remove because of a complaint. For example, in one of the more extreme cases, a harassment complaint was filed against a graduate student who had on his desk a 5" x 7" photograph of his wife in a bikini. The employer ordered that the photo be removed.[22]

Unfortunately, because harassment law is potentially so broad (it applies to any conduct that is "severe" and "pervasive" enough to create a hostile workplace), because it operates based on aggregate effect rather than specific incident, and because the potential liability and publicity associated with a lawsuit can be so severe, companies must respond to each individual complaint. If a company were to ignore some complaints while responding to others, the company would effectively be saying that some conduct that is offensive to a particular employee is acceptable while some other conduct that is offensive to another employee is not acceptable. By doing this, the company could open itself up to liability.

The potential for workplace harassment creates a difficult environment for companies. On one hand, employers do not want to be draconian and punish workers for seemingly petty offenses. At the same time, however, any individual comment, jokes, or action could, when taken in the aggregate with all of the other comments, jokes, or actions, be the straw that breaks the camel's back for an individual employee. To avoid the risk of creating a "hostile workplace," an employer cannot simply tell all of its employees not to do or say so many offensive things that the sum of all of the offenses would create a hostile workplace. There is no way for any employee to know what other employees are doing or saying at all times. One employee may be present in different groups on different occasions when a single employee or even different employees make similar comments or tell similar jokes that are offensive to that one person. These separate events could be interpreted by a judge or a jury to be sufficiently "severe" and "pervasive" to create a hostile work environment. Because there is no way for any individual employee to know whether other employees are making similar jokes or comments or are doing or saying enough other things that the result of the collective actions is to create a hostile workplace, an employer has to prohibit all potentially offensive behavior and respond to each complaint equally.

Conclusion

Harassment is any speech or other behavior that, if "severe" and "pervasive" enough, can create a hostile workplace. The First Amendment protections for freedom of speech generally do not apply in the workplace; they apply only to government action. Because the terms "severe" and "pervasive" are so vague, to protect themselves from liability, employers must establish and enforce policies that restrict any speech or activity that, if repeated enough times or by enough people, might be held by a jury or judge to be "severe" or "pervasive" enough to create a hostile workplace.

NOTES

[1] This article provides general information and represents the author's views. It does not constitute legal advice and should not be used or taken as legal advice relating to any specific situation.

[2] For a discussion of an employee's right to electronic privacy in the workplace, see "Electronic Privacy in the Workplace," in the April 2000 issue of ;login:.

[3] Section 2701(a) states: "Offense. Except as provided in subsection (c) of this section whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section."

[4] 18 U.S.C. 2701(c).

[5] Merriam-Webster's Dictionary of Law (1996) <http://dictionary.findlaw.com/scripts/ results.pl?co=www&topic=7c/7cea1d560bd690325e45218463669979>

[6] See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (barring harassment based on race, religion, sex, or national origin).

[7] Eggleston v. South Bend Community Sch. Corp., 858 F. Supp. 841, 847—48 (N.D. Ind. 1994) (barring harassment based on age and disability under the Age Discrimination in Employment Act and the Americans with Disabilities Act).

[8] 38 U.S.C. §4311 (1994) (barring discrimination against present or former armed service members). Additionally, several states, including California, Colorado, Florida, Illinois, Iowa, Michigan, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Wisconsin, and Wyoming, have passed statutes that prohibit discrimination against present members of the armed services and/or the National Guard.

[9] Ill. Stat. Ch. 775 §§5/1-103(Q), 5/2-102 (1997) (barring discrimination in "terms, privileges or conditions of employment" based on "unfavorable discharge from military service").

[10] See, e.g., Cal. Gov't Code §12940(h)(1) (West 1992 & Supp. 1995) (barring discrimination based on marital status).

[11] D.C. Code Ann. §1-2512 (1981 & Supp. 1988) (barring discrimination in "terms, conditions, . . . or privileges of employment" based on "family responsibilities").

[12] Leibert v. Transworld Sys., Inc., 39 Cal. Rptr. 2d 65, 67 (Ct. App. 1995) (barring harassment based on sexual orientation).

[13] D.C. Code Ann. §1-2512 (1981 & Supp. 1988) (barring discrimination in "terms, conditions, . . . or privileges of employment" based on "personal appearance").

[14] New Orleans Code §86-1 (stating that discrimination based on "gender identification," which includes cross-dressing, is to be treated as discrimination based on sexual orientation), 86-131 (barring discrimination based on sexual orientation, defined to include discrimination "with respect to . . . terms, conditions or privileges of employment," which includes hostile environment harassment).

[15] D.C. Code Ann. §1-2512 (1981 & Supp. 1988) (barring discrimination in "terms, conditions, . . . or privileges of employment" based on "political affiliation").

[16] N.Y. Correction Law §752 (generally banning discrimination based on having "previously been convicted of one or more criminal offenses").

[17] Ill. Stat. Ch. 775 §5/2-102 (1997) (barring discrimination in "terms, conditions or privileges of employment" based on "citizenship status").

[18] D.C. Code Ann. §1-2512 (1981 & Supp. 1988) (barring discrimination in "terms, conditions, . . . or privileges of employment" based on "matriculation").

[19] Minn. Stat. Ann. §363.03(2) (barring discrimination in "terms, conditions, . . . or privileges of employment" based on "status with regard to public assistance").

[20] D.C. Code Ann. §1-2512 (1981 & Supp. 1988) (barring discrimination in "terms, conditions, . . . or privileges of employment" based on "smoking or using tobacco or tobacco products outside the course of . . . employment").

[21] U.S. CONST. amend. I.

[22] Nat Hentoff, "A 'Pinup' of His Wife," Washington Post, June 5, 1993, at A21. The law's ban on sexually suggestive materials in the workplace is not limited to those containing nudity; see, e.g., In re Butler, 166 Vt. 423, 697 A.2d 659, 664 (1997) (concluding that "a poster of a woman in a skimpy bikini" could count as harassment, because "the posting or display of any sexually oriented materials in common areas that tend to denigrate or depict women as sexual objects may serve as evidence of a hostile environment")