Cyberspace Harassment

Employers face new challenges attempting to prevent harassment and discrimination in the work place. Access to the Internet has become commonplace permitting employees access to explicit and harassing cyberspace material.

Employee usage of the internet and other means of electronic communication has expanded the potential exposure for the employer with charges of work place harassment and discrimination. An employee may be subjected to unwelcome advances and/or other forms of discrimination through the exchange of messages on the internet or via e-mail. Electronic communication through the internet and e-mail is often times informal and colloquial. An employee will often boldly prepare an e-mail that would never survive written formal correspondence. Further, employees also mistakenly believe that a deleted e-mail or internet message is destroyed forever.

The New Jersey Courts have begun to address the role of e-mail internet use in connection with harassment and discrimination claims. The New Jersey Supreme Court recently held that an employer who has notice that employees are engaged in a pattern of retaliatory harassment using a work related on-line forum has a duty to remedy that harassment. If the employer does not remedy the on-line harassment, the employer can be held liable for discrimination and/or harassment.

Employers are offered defenses if a preventive program properly investigating claims and taking prompt and legal action is instituted. If an employer exercises reasonable care to prevent and correct harassing and discriminating behavior, the employer can raise various affirmative defenses to defeat a cyberspace claim.

Employers should develop a formal electronic communications policy regulating employee internet and e-mail use. Any policy implemented by the employer should reference the employer's sexual harassment and discrimination policies. Similar to other forms of harassment and discrimination, employers should alert employees that any form of internet or e-mail harassment or discrimination will not be tolerated and will be grounds for corrective action up to and including termination of employment.

If an employer properly utilizes preventive measures, and employees are generally aware of what is expected of them, the employers potential liability from cyberspace should be controlled.