Employers Risk Law Suits Over Smutty Spam

When I was in high school, I took my parents' car to a national franchise tire and muffler replacement center. After discussing the work that was to be done on the car, I took a seat in the waiting room and looked for a magazine. As a 17-year-old male, I couldn't believe my good fortune when I found, next to the issues of Popular Mechanics, a dozen issues of Playboy.

Though the owner of the franchise apparently believed that this was appropriate reading material for his waiting room, I saw that I was in mixed company and didn't even come close to picking up one of the Playboys.

I left wondering how they came to be there and is anyone actually had the courage, or lack of good judgment, to look at them in a waiting room that was probably frequented by women.

Whether they know it or not, the majority of today's email-capable employers occupy the position of that muffler franchise owner. Spam (search) has not just reached the level of a torrent; pornographic email solicitations now constitute the fastest-growing category of spam, having doubled as a percentage of spam in the past two years, according to the software company Brightmail. Anyone who uses email will tell you she has opened email with the innocuous subject line of "Hi" only to be greeted with a graphic pornographic image. Many with an email client that utilizes a preview pane are subjected to the image even if they never open the email.

In 2003, the E-Policy Institute (search) estimated that 2.1 million pieces of spam are received and circulated annually by an organization of just 1000 employees. By now it is impossible for any medium-sized employer to truthfully say it is unaware of the thousands of pieces of lewd and pornographic spam sitting on its servers each day. The low-budget corporate anti-spam policy goes something like this: "If you suspect that a piece of email is spam, then (1) don't open it, and (2) delete it."

Employees who have been subjected to a hostile work environment may successfully sue employers. An employer may defend against such claims by demonstrating that it exercised reasonable care in preventing and correcting any sexually harassing behavior, and the employee failed to take advantage of these procedures. Whether or not a directive to employees to not open and then delete email suspected of being spam is reasonable care is yet to be litigated.

But it probably does not constitute "reasonable care." The Bureau of National Affairs (search), a Washington, DC-based publisher and analyst of legal and regulatory developments, this year issued a study that concluded that, under current laws, employers who fail to address the issue of employees receiving pornographic spam at work face potential liability for a hostile work environment.

"For example, a worker who forwards pornographic e-mail to a co-worker contributes to a hostile work environment as does an employee who makes lewd comments to a co-worker. The employer, if it knows or should have known about the behavior, is obligated to stop it," said BNA.

Consider that cubicles, the standard configuration of American offices today, afford no privacy whatsoever. Anyone walking past a cubicle is able to see what appears on the computer screen within. Should an employer expect an employee who has in the past missed an important piece of email, and to be safe now sifts through every piece, to distinguish between plain old spam and pornographic spam? Is that even possible, given the misleading subject lines regularly used by spammers? Is opening pornographic email in plain view of others any different than forwarding it?

In our now email dependant culture, the "don't open and delete" policy creates an outright conflict with the careful work American corporations expect from their employees.

There are industries in which a "don't open and delete" anti-spam policy can be grounds for malpractice. Fiduciaries, like lawyers, accountants and other financial professionals, depend on time-sensitive communications from clients, and cannot ignore them. Not opening and then deleting the wrong piece of email is no different than dropping an unopened letter from a client in a trash can.

It's safe to say that, at the moment, spam is evenly divided between pornography and get-rich-quick schemes. If the trends continue, spam will soon be predominantly pornographic, which will mean that the average piece of spam in an employee inbox is pornography. Until American corporations get serious about keeping spam out of their employees' inboxes altogether, we will all be sitting in that waiting room, with the dirty magazines in plain view. Employers are idle at their risk.


Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of The New Immigration Law and Practice, to be published in October.

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