Reprinted from the August 15, 2007 issue of MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through true-to-life dialogue and fact-based examples. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Inadvertent Harassment May Still Be Illegal Harassment

Vulgar e-mails about an employee can hurt a company in court, even if the e-mail is not sent to the employee and is not intended for the employee to ever see.

SENT TO SUPERVISOR

Mindy Kaiser had had it up to here with Walt McPartland. Their interpersonal relationship was rocky as it was, and it was even worse when their supervisor, Nate Lauder, was out of the office.

During a business discussion between Kaiser and McPartland, McPartland commented he was tired. Kaiser sarcastically said, "Go take a nap."

McPartland responded by giving her the middle finger and swearing at her.

"I'm done with this conversation!" Kaiser said as she stormed back to her desk. She immediately sat down at her computer and banged out an e-mail to Lauder, who was out that day. She vented about the conversation with McPartland and expressed frustration about the ongoing tension between them. She hit the send button and got back to work.

After she had calmed down, she thought better of the e-mail. She went to Lauder's computer so she could erase the message before he could read it when he returned to the office the next day. She saw that McPartland had forwarded him an e-mail. Kaiser couldn't help but open it. She was almost sorry that she did because it was an exchange between McPartland and another co-worker about her. The message was vulgar and offensive.

SENT TO COURT

Kaiser went back to her office and sent another message to Lauder. She acknowledged that she saw the e-mail and told him that she was offended by it. She did not go to work the next day.

The day after that, Lauder told her he had reprimanded both McPartland and the co-worker. McPartland sent Kaiser an e-mail stating that he was told by Lauder to apologize to her, but that he didn't understand why she couldn't take a joke.

"Nate, Walt didn't mean a word of his ‘apology,'" Kaiser complained.

"I know, I know. But you shouldn't let it interfere with your work. Just go back to work," Lauder told her.

Kaiser eventually filed a sexual harassment lawsuit against the company, based on the e-mail and on numerous sex-based remarks that she endured from co-workers.

The company argued in court that the e-mail was not evidence of harassment because Kaiser was never intended to see it. The court "heartily disagreed" and sent the case to trial.

Said the court: "Such a statement is akin to asserting that a person who overhears her co-workers using sexually derogatory terms to describe her cannot be subjected to a hostile work environment merely because the co-workers did not intend her to hear them." It is not necessary that discriminatory conduct be both directed at the victim and intended to be received by the victim.

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