Last week, a federal judge in Illinois showed us why employers may be wise to (lawfully) search for and use electronic communications involving an employee.
In Jacober v. U.S. Dep’t of Agriculture (Southern District of Illinois), the plaintiff worked as a loan specialist in the Department of Agriculture’s service center. The case is chock full of facts regarding conversations, performance discussions, and some internal complaints, and you are free to go through the entire court’s decision here if you’re interested.
But the bottom line is that the plaintiff sued her employer alleging, among other things, that she was sexually harassed in the workplace. The primary evidence that she relied upon: she found out about, and later personally viewed, some photographs of her direct supervisor that were inserted into a PowerPoint presentation, and which show the supervisor wearing “overalls with no shirt underneath, a hard hat, tool belt, and shoes, with his arms crossed.” Many of you know that one of the elements a plaintiff is required to prove for a sexual harassment claim is that the plaintiff was “subjected to unwelcome sexual conduct, advances, or requests[.] [emphasis added.]” To determine whether conduct is “unwelcome”, a court will generally look at the entire context and circumstances, and whether the conduct is both subjectively and objectively offensive.
Plaintiff in Jacober claimed that she found the photographs to be offensive because it was her supervisor in the photographs, he was with a college student (the one who assisted with the PowerPoint slides), he was shirtless during the work day, and the images “were put on a government computer”. But, what is perhaps the best way to counter an “unwelcome” argument? Provide evidence that the plaintiff happened to previously welcome similar (or worse) images on her computer, and in the conversations she voluntarily had with other people.
And that’s precisely what her employer did. In dismissing Plaintiff’s sexual harassment claim, the court referred specifically to the employer’s evidence that plaintiff responded to arguably more graphic images sent to her work e-mail address by responding “that’s too funny”, and that she affirmatively sent pictures that were clearly more graphic to others outside of her work from her computer. The court ruled:
“While plaintiff may not have liked the pictures of [her supervisor] in overalls, or personally found it to be unprofessional, she cannot make a claim that these photographs were subjectively sexually offensive, in that her own work email account contained pictures of males wearing far less clothing, one of which contained a photograph showing the full buttocks of a male, which she found humorous and even forwarded to her own daughter. Plaintiff’s own actions therefore, make it unbelievable to this Court that she could find the photographs to be unwelcome sexual conduct that made her work environment intolerable. She tolerated, and, in fact, generated further distribution of images that were more revealing, and therefore could be considered much more sexual in nature than the one of [her supervisor].”
Employer Take Away: What should you as an employer take away from this development?
Repeat after me: There are good reasons for employers to use social media and electronic communications of employees. One of those uses is to defend your company in a lawsuit, when a current or former employee suddenly alleges that she or he was subjected to a harassing or discriminatory work environment. Understanding the elements that must be proved for such a claim, and being able to effectively obtain and use the type of evidence that “is never truly deleted when deleted” to disprove those required legal elements against the individual suing you, will go a long way to minimizing potential risks and “exposure” to claims in the future.
It also is worth noting, however, that, despite what may not have been any malicious intent on the part of any of plaintiff’s supervisors in Jacober, it may also be wise to review your internal anti-harassment and anti-discrimination policies, and properly train your management personnel to understand that certain conduct may not be appropriate for your particular work environment, even if it does not rise to the level of unlawful conduct. What if this employer did not have evidence of the plaintiff’s own use of revealing pictures?
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
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