by Greg Reynolds
Spam can create legal complications for businesses:
• Hostile or unsafe workplace lawsuits
• Sexual harassment lawsuits
Defending against unsafe workplace lawsuits of this nature can be
tremendously expensive for businesses. You must be able to
document all efforts made to protect workers from offensive
materials. Legal costs can quickly climb into the tens of
thousands without any guarantee of a favorable decision.
Similarly, employees forwarding
pornographic spam can create huge liabilities for their employers.
What one person might intend as a joke can be perceived by someone
on the receiving end as harassment. We’ve all heard the old saying
“perception is reality” and many juries have backed that viewpoint
with substantial awards.
Companies worldwide need to provide a positive work environment
for their employees. For example, in the US, companies with 25 or
more employees must, under federal law, provide a work environment
free of gender, ethnic or racial harassment or discrimination.
That requires taking reasonable steps to eliminate harassing
materials from the workplace. It may not matter whether the
company knew employees were downloading pornographic images or
passing racist e-mail jokes.
The test at trial could be whether well-known remedies were
available to prevent abuses, whether a policy existed to apply
those remedies, and whether the policy was actually enforced.
Illegal or offensive content may include:
• Pornographic images downloaded off the Web
• E-mail jokes (either sent or received)
• Pornographic or racially offensive e-mail attachments
• Rumors or gossip regarding a fellow employee
• Unauthorized release of personal employee information
• E-mail discussions that result in employee harassment or
Illegal or offensive content - both Web and e-mail - is a risk. It
is much better from a legal standpoint to protect your business
with strong spam filters and an ironclad Acceptable Use policy
that is enforced every day.
What’s important to stress here is that having a policy is
generally not enough to establish a defense to a claim of
harassment. Employers must also enforce the policy and proactively
take steps to prevent employees from being exposed to harassing
non-commitment or, worse, disregard for accepted working
conditions, while the implementation of filtering systems and
perimeter protection services count as important indicators of
corporate intent to enforce stated policies.
The three-pronged foundation of policy, training, and enforcement
greatly reduces the potential for employment-related claims.
In the event of litigation, this
foundation will strengthen the employer’s position in requesting a
summary judgment or other motion to terminate litigation at any
early stage – saving legal costs in hundreds of thousands of
dollars and substantial damages.