Companies face a legal duty to take action as a result of federal civil rights laws dealing with sexual discrimination. US law says that it is illegal for employers to discriminate against employees based on their "race, colour, religion, sex or national origin." Courts have interpreted that broadly, ruling that sexual comments can contribute to a work environment that a reasonable person would deem hostile. In a 1993 case titled Harris v. Forklift Systems, the US Supreme Court concluded that for a workplace to be illegal, "the environment would reasonably be perceived, and is perceived, as hostile." Lower courts have placed the sexual harassment classification on job titles such as "foreman" and "draftsman," on off-colour jokes and cartoons displayed in the workplace and on "misogynistic rap music" audible to coworkers. Employers face serious penalties if they don't remove such things from the working environment. People who have been subjected to harmful work settings can sue for up to $300,000 in compensatory and punitive damages, if the company has more than 500 employees. Damages are scaled back to $200,000 if the company has between 200 and 500 employees, with lower fees paid out by still smaller companies. If an employee leaves because of an environment judged hostile, they can ask for reinstatement, back pay and back benefits. Because spam typically is sent by someone not affiliated with the company, the Internet offers a new twist on the old problem of providing a harassment-free workplace. Eugene Volokh, a professor of law at UCLA, who writes about workplace harassment law, says the email's origin doesn't matter. "Just as an employer has a duty to protect from patrons and other people -- like the (delivery) guy who fondles a secretary -- there's a good theory saying a company has a duty to filter (offensive email) even if the employees are being harassed entirely from far outside the company walls," Volokh said. "If the employer is reasonably capable of filtering the material, and if it doesn't do that, it would be held liable." Diana Johnston, an attorney in the Equal Employment Opportunity Commission's Office of Legal Counsel, says the "notion of spam coming in from outside seems to me most analogous to the situation where an employee is being harassed by a customer or client as opposed to another employee." For a company to be held liable for porn spam, Johnston says, it would probably have had to receive reports from upset employees and not acted on them. "The fact that it may sometimes exist is not going to be enough," Johnston said. "If you're talking about harassment coming in from the outside, the employer has to be on notice before they're subject to any liability. I would think the employer would not be liable unless the employee notified the employer that he or she was receiving this kind of material." "Part of the equation is whether the employer has the ability to control the conduct," Johnston said. "Because the hostile environment is created by cumulative events, employers generally want to step in at an early stage so it doesn't rise to the level of illegality." Pre-emptive blocking?
There seems to be little doubt among experts that an employer must respond quickly if employees complain about porn spam or if supervisors receive similar email messages themselves. If an employer is not on notice, however, its responsibility is less clear. Joanna Grossman, a professor of law at Hofstra University, who writes about sex-based discrimination, predicts that cautious employers will choose to install spam filters even before they receive complaints from employees. "To be safe, employers may decide to implement some kind of general blocking software," Grossman said. "It is an overstatement to say employers are required to (pre-emptively) block pornographic spam from reaching their email systems, but it may be something employers choose to do to ensure they don't run afoul of the rules of liability. Courts certainly look favourably upon employers who take measures like this." One recurrent problem with spam-blocking technologies is that they tend to snare some legitimate email too. In the vernacular of spam fighters, those legitimate messages are "false positives," while actual spam that is erroneously classified as legitimate correspondence is a "false negative." In February, a group of email marketers began an effort to compile grievances about overly broad spam filters. Frank Gillman, director of technology at law firm Allen Matkins Leck Gamble & Mallory in Los Angeles, said his company has installed a strong spam blocker that's reduced the spam in his personal account to about three messages a day, compared with nearly 100 without the software. Still, Gillman said he doesn't distinguish porn spam from other types of unwanted email when seeking to manage the firm's network. It all falls under the scourge of spam. "The company can't control the content of spam," Gillman said. "All we can do as employers is put in a mechanism that minimises the ability of messages to get there." Gillman said the company would take a different approach if an employee were sending out lewd emails or proactively visiting porn Web sites in the workplace. But he said most people have just come to expect a certain amount of lewd spam, whether from their home or work networks. "I think it's yet another reality that comes with the cyberworld, like viruses. Any technological improvement is always going to come with some kind of downside," Gillman said. David Burt, a spokesman for N2H2, which makes filtering software designed to prevent access to pornographic Web sites, says it's harder to detect sexually explicit spam than it is to block sexually explicit sites. "We have never seen much evidence that (Web) pornographers try to subvert filters, and I assume that's because most of the paying customers of porn sites are adults downloading from their own homes," said Burt. "Spammers on the other hand, do aggressively try to fool spam filters...We don't see that kind of stuff with commercial porn Web sites." Overzealous filters
Antispam blacklists, some of which punish entire Internet providers or hosting services in a guilt-by-association approach, frequently label legitimate email as porn. In September, Yahoo!'s storefronts site was added to a list of suspected spammers, and in July, UK telecommunications giant BT's main email hub appeared on SpamCop's blacklist. Even very reliable services like SpamAssassin occasionally mislabel email, though the spam threshold can be adjusted. Allison Michael, who cochairs the employment practice at Jones Day in Los Angeles, calls these "uncharted waters" for businesses because they must weigh the risk of accidentally losing important e-mail with the peril of substantial legal liability. "The balance of an employer's obligation to protect its employees from harassment, an employer's sole ownership of its electronic highway and an employee's privacy rights creates a challenging management opportunity," Michael said. "There is also the purely financial consideration of the disruption to the efficiency of operations and the potential loss of customer business that may result from the blocking of legitimate emails." Michael says that depending on the size of a company and its resources, it may be able to take an alternate approach. An employer could establish "a written policy that prohibits employees from opening -- and certainly from transmitting -- an email that is or appears to be unrelated to company business," Michael said. "In any scenario, it is unlikely that an employer would be required to completely eliminate the possibility of receipt into its system of pornographic spam email, but it is safe to assume that an employer would be required to take reasonable and appropriate actions aimed at preventing it." Walter Olson, a fellow at the Manhattan Institute, who runs the Overlawyered.com site, predicts that trial lawyers will find porn-spam lawsuits to be a growth industry. "Once an employee complains, and asks the employer to install blocking, the liability risk in not doing so grows more acute," Olson said. Hans Bader, an attorney at the Center for Individual Rights, has criticised "hostile environment" laws as violating free speech rights guaranteed by the First Amendment. Logically, he said, mass email should not count as sex discrimination because spammers don't know the sex of the person who reads it. Bader said that courts, especially state courts, still take an expansive view of sexual harassment, but he predicts that will change over time as courts become more sensitive to free speech concerns. "It's ironic to treat gross emails as sex discrimination against women, since that assumes that women are especially sensitive and mentally frailer than men are -- if it offends them equally, there is no discrimination," Bader said. "Yet that is what sexual harassment law does now in many jurisdictions -- it bans sexual speech because people think women are uniquely offended by it. It is based on sexual stereotypes." For now, however, an expansive view of workplace harassment is the law of the land. The federal Equal Employment Opportunity Commission, for instance, has said that sexual harassment concerns mean a Minneapolis library should install Web filtering software, a small step from requiring that email must be filtered as well. Mike Eastman, director of labour law policy at the US Chamber of Commerce, says that federal sex-discrimination law never envisioned how the Internet has changed the workplace. "We're talking about laws that were made with specific circumstances in mind and trying to apply them to things that weren't contemplated," Eastman said. "Really all we can do is guess."
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