by Howard P. Shaw and Douglas Zucker

New Jersey has been a national leader, and continues to have one of the strongest policies, in regard to condemning racial and sexual harassment and providing remedies for employees who experience hostile work environments. During 1998, the New Jersey Supreme Court even held that under extreme circumstances, a single instance of offensive language may be sufficiently outrageous and shocking to support a hostile workplace claim.

Cases from around the country show that e-mail has become a factor in racial and sexual harassment claims, in ways that demonstrate a number of the ideas discussed elsewhere in this newsletter. In several cases, the evidence included racist or sexist jokes that had been circulated by e-mail within the company, the senders probably thinking that the joke would be told and would then disappear. In one of those cases, the employee who originated the joke forged the password of an African-American employee.

In other cases, supervisors were charged with making unwelcome sexual advances or demands by e-mail, even after the recipients had rebuffed the supervisors' approaches. These are the kind of actions that in the past would have been made face to face, or on the telephone.

These cases and incidents point up several concerns for employers: First, employers should establish anti-harassment policies. They should train their supervisors and employees to understand what constitutes harassment and to avoid harassing conduct.

Second, the employer's e-mail policy should reflect and refer to the company's anti-harassment policies. Employees should be made to understand that words and conduct that are unacceptable in person or by telephone are equally unacceptable over e-mail.

Next, employees should be trained to understand that e-mail is not anonymous. It is very traceable, even when sent out over the Internet. Anyone who questions that need only be reminded that it took just five days to track down the alleged creator of the Melissa virus, which was started by e-mail and which could have originated anywhere in the world.

Finally, the challenge of combating harassment will compel employers to face difficult decisions about monitoring of employees' e-mail. Should e-mail be monitored on a random basis? Should filtering software be employed, to block and identify e-mail that uses inappropriate words or phrases? Should the employer just monitor when there is suspicion that a particular employee is sending improper e-mails? What are the relative risks of failing to monitor at all, as compared with reserving the right to monitor but failing to do so effectively, if one employee misuses e-mail to harass another?

These and other questions regarding oversight and control of employees' e-mail can affect productivity, morale, and risk level. No one set of answers will be right for every employer, and consultation with legal counsel and your technology managers can help you to decide what will work best for your organization.