Obscene Spam In The Workplace - Is It The Employer’s Responsibility?

Written By: Evelyn P. Schonberg | 2003-09-30

Obscene Spam In The Workplace – Is It The Employer’s Responsibility?

Employment Law Social Media

Consider the following factual scenario: Joe Employee works for XYZ Company. On Monday morning Joe arrives at work, turns on his computer and signs into his office e-mail account. He clicks onto a message and is visually assaulted with pornographic obscenities of a sexual nature. Joe has never before visited pornographic Internet sites nor has he ever purchased goods or materials from his office e-mail account. Joe has also never requested that he receive such e-mail from any business anywhere at any time. Joe, who is devoutly religious, is so disgusted and shocked by the disturbing vision on his screen that he suffers severe emotional distress, cannot work and eventually loses his job. Does Joe have a cause of action against XYZ Company for his damages?

This factual scenario is occurring more frequently in many businesses today. The current law on sexual harassment makes a company liable for harassment by one employee against another employee. It also makes a company liable for harassment by a vendor, customer and/or subcontractor against an employee. The question raised by the scenario above, however, is whether the sexual harassment law makes a company liable for obscene spam sent from outside the company. [ Ed. - Spam has been defined by one federal court as “ an unsolicited, often commercial, message transmitted through the Internet as a mass mailing to a large number of recipients." Verizon Online Services v. Ralsky. The same court traced the derivation of this word to a Monty Python routine from The Flying Circus, Just The Words.]

A good argument can be made that a company would indeed be held liable for its failure to control the offending spam, especially if it had received complaints about it from an employee. An employer must always keep in mind that it owns the computers as well as the software used by employees. If a company-owned computer were somehow attracting obscene or offensive e-mails, it would be the obligation of the owner of the hardware and software to control the e-mail. Otherwise, the employer may very well be in violation of its own harassment policy, which typically prohibits sexually offensive conduct and language in the workplace.

Assuming that an employer could be liable for obscene spam, the next issue to address is, what can an employer do to control spam? Most employers are aware that if an employee brings pornographic pictures into the workplace, the employer can instruct the employee to either immediately cease such activity or face termination. It is not as easy to filter spam however. Many companies operate their e-mail and Internet through a server, which makes it extremely difficult to filter out spam. Certain identifiable e-mail addresses can be blocked if the Internet and e-mail are operating from service providers, such as AOL or Microsoft. Spam, however, is rather stubborn, and cannot be so easily deterred.

As one can see, the issue of obscene spam in the workplace is very complex. Because of the potential liability to employers in this area, we recommend that the following steps be taken:

Create a policy that states, or amend your existing policy on Internet and e-mail usage to include, a strongly worded condemnation for obscene, pornographic and/or offensive e-mails in the workplace, including the receipt of spam. Recognize that while unwanted spam is difficult to control, the company will make every effort to put guards in place to prevent any employee from being the recipient of unwanted offensive e-mail. The policy should also contain the following prohibitions: no visiting pornographic web sites on company computers; no downloading or circulating offensive materials; no viewing of pornographic sites while working. All employees must be instructed to report the receipt of any obscene spam.
Purchase software that identifies the origin of unwanted materials. Much of this type of software is inexpensive and can be found at office supply stores.
Investigate spam filtering technology to determine whether your own workplace can adopt some form of filter. If not, document your efforts and explain your company’s decision not to obtain the filter.
Continue to monitor the network to identify offensive spam (be sure that your Internet and e-mail policies place employees on notice that the company randomly monitors the network and e-mails).

To answer the question posed by the factual scenario in the beginning of this article, it is our opinion that while Joe, like any employee, can file a lawsuit against his employer for almost any reason, the likelihood of success is very dim. Joe would have to prove that XYZ knew or had reason to know about the spam on his computer, and failed to take corrective action. If Joe sues after only one episode of unwanted pornography, he would have a very difficult time proving that XYZ failed to correct the situation, especially if XYZ has the proper policies in place. Finally, Joe would have to prove that his reaction was “reasonable,” especially if the spam would not be as offensive to other reasonable persons.

Many employers are concerned about their exposure to the types of lawsuits detailed above. Contact Lynn Schonberg for help regarding this or any other employment concern your company may be faced with.

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