DOES AN EMPLOYER HAVE AN AFFIRMATIVE DUTY TO PREVENT DEFAMATORY STATEMENTS MADE BY ITS EMPLOYEES ON AN ON-LINE COMPUTER BULLETIN BOARD THAT ARE INTENDED OR LIKELY TO INJURE A CO-EMPLOYEE?

The New Jersey Supreme Court in Blakey v. Continental Airlines, Inc. et al., 2000 N.J. Lexis 650 (June 1, 2000) has decided the above issue in the affirmative. 

FACTS: 

Tammy Blakey, a pilot for Continental Airlines, sued her employer for sexual harassment based upon a hostile workplace.  Pilots and crew members used the Continental Airlines Home Access (“CAHA”) page to gather information about flight schedules and assignments.  In addition to providing the flight schedules and assignments, CompuServe offered an extra option, for an added charge to Continental’s employees, called Continental Forum for pilot crew members to exchange ideas and information.  None of the actual software or hardware was owned by Continental Airlines, but rather was outsourced by Electronic Data Systems and CAHA was maintained by CompuServe, a separate and independent internet provider.

Blakey’s fellow pilots and crew members used The Continental Forum where they allegedly left messages and commented on Blakey’s capabilities as a pilot and the validity of her sexual harassment lawsuit.  The Court phrased the issue of the electronic bulletin board as follows:

The question in this more complex case is whether the Crew Members’ Forum is the equivalent of a bulletin board in the pilots' lounge or a work-related place in which pilots and crew members continue a pattern of harassment.

HOLDING BY COURT:

The Court held:

To repeat, employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace. Besides, it may well be in an employer's economic best interests to adopt a proactive stance when it comes to dealing with co-employee harassment. The best defense may be a good offense against sexual harassment. ‘We have afforded a form of a safe haven for employers who promulgate and support an active, anti-harassment policy.’ Cavuoti, supra, 161 N.J. at 121. Effective remedial steps reflecting a lack of tolerance for harassment will be ‘relevant to an employer's affirmative defense that its actions absolve it from all liability.’ Payton v. New Jersey Turnpike Auth., 148 N.J. 524, 536-37, 691 A.2d 321 (1997). Surely an anti-harassment policy directed at any form of co-employee harassment would bolster that defense. 

2000 N.J. Lexis at 43.

COMMENTARY:

The bounds of the workplace environment have once again been expanded beyond the bricks and mortar that make up the corporate campus.  In the new electronic information age, the Internet provides access to more and different types of information, but alas this access has a hidden catch for employers and their employees.  In Cyberspace, if an employee is somehow impacted by fellow employees, which a Court can determine is an extension of the organization and thus a benefit to the employer, then the trap has been set for the unwary employer.  The Court in Blakey spent a great deal of time explaining that an employer does not and should not monitor private communication of its employees, but a prudent employer reading this decision would come to an entirely different conclusion.  The twists and turns of the litigation road have long been treacherous, but now the corners are hairpin turns.

The Court provided one safe harbor: “The best defense may be a good offense against sexual harassment. We have afforded a form of a safe haven for employers who promulgate and support an active, anti-harassment policy.”  An employer must have a sexual harassment policy that is updated to reflect all the recent changes and the policy must be dispensed to the employees with training.  In the event of a sexual harassment complaint, the investigation needs to be swift, thorough and provide a recommended course of action.  Anything less than this pro-active approach will send an employer’s defense against a sexual harassment lawsuit careening over the cliff.

The Employment Plaintiff Attorney’s Engines Are Roaring!  Is Your Organization’s Sexual Harassment Policy Road Tested?  Are Your Employees Trained?  If Not, Have An Audit Done Today To Make Sure Your Organization Is Ready To Run On All Cylinders.