Sexual harassment: Limiting the affirmative defense in the digital workplace

• Author: Daniel B. Garrie
• Pages: 284-297

SEXUAL HARASSMENT: LIMITING THE AFFIRMATIVE DEFENSE

IN THE DIGITAL WORKPLACE

Daniel B. Garrie

Abstract

There has been a disturbing rise in sexual ha rassment claims in recent years tha t have been facilitated

by the ubiquitous a vailability of digital communication devices. Such harassment occurs thr ough unprovoked

and offensive e-mails, messages posted on electronic bulletin boards, and other means available through the

Internet. To date, courts have r emained silent on this issue. Should th is type of ha rassment be t reated any

differently from physical hara ssment? The somewhat surprising a nswer is yes.

This ar ticle suggests a new judicial framework for addressing sexual harassment per petrated th rough

digital communications. This framework accounts for both the r eal-world technology in pla ce in the digital

workplace and the legal framework that courts have constr ucted in connection with affirmative defenses to

hara ssment. The fundamental difference between digital and physical sexual ha rassment is the employer's ability

to monitor and block offensive digital communications and thus prevent sexual harassment; this possibility of

prevention is the underlying reason for treating the two forms of ha rassment differently and for modifying the

existing affirmative defense.

This article proposes that when an employer fails to use available technology to prevent known digita l

sexual hara ssment issues, the affirmative defense should be either modified or altogether una vailable. The

adoption of this appr oach would compel employers to deploy blocking a nd monitoring technology as a

preventative means designed to eliminate digita l harassment in the workplace.

Key words: sexual ha rassment, workplace, defense, employers.

Introduction

Sexual har assment law has evolved gr eatly over the la st few decades. Hara ssment claims have

expanded to include employer liability for co-worker ha rassment, supervisor ha rassment, and, most recently,

third party har assment.

1 Cor respondingly, courts have provided employers with specific defenses aga inst such

liability.2 For example, a n employer escapes lia bility by taking cor rective measures reasona bly ca lculated to

permanently end the hara ssment;3 in many instances, the employer cannot p revent the initial harassment but is

able to ensur e that it does not continue or recur .4

With no provision for preventing ha rassment in the first instance, however, such judicial tr eatment

provides little comfort to a har assment victim. The Supreme Court has recognized this insufficiency of redress,

holding tha t employers should take preventive measures to ensure a hara ssment-free workplace consistent with

Title VII of the Civil Rights Act of 1964 and its policy of encour aging the creation of anti-hara ssment policies

and effective grievance mechanisms.5 While an employer ca nnot observe or control all the a ctions and

manifestations of its employees in the physical workplace, it can more practicably prevent ha rassment in the

digital workplace beca use cost effective technolog y exists to actively monitor t he content of digita l

communication in e-mail, Internet postings, instan t messaging, and other digital means.

 The author would like to note that an earlier version of this article was published with the invaluable contributions of both Matthew

Armstrong and Professor Donald Harris. See Donald P. Harris, Daniel B. Garrie & Matthew J. Armstrong, Sexual Harassment: Limiting the

Affirmative Defense in the Digital Workplace, 39 U. MICH. J.L. REFORM 73, 83–87 (2005), ijjs@univagora.ro

1 See Powell v. Las Vegas Hilton Corp. 841 F. Supp. 1024, 1028 (D. Nev. 1992) (holding that an employer may be liable for sexual

harassment of employees by non-employees); Galdamez v. Potter, 415 F.3d 1015, 1022-25 (9th Cir. 2005) (the employer may be responsible

for actionable third-party harassment of its employees); Turnbull v. Topeka State Hosp. 255 F.3d 1238, 1244 (10th Cir. 2001) (employer may

be responsible for sexual harassment toward employees by acts of nonemployees); Crist v. Focus Homes, Inc. 122 F.3d 1107, 1111 (8th Cir.

1997) (employer may be responsible for sexual harassment toward employees by acts of nonemployees); Rosenbloom v. Senior Res. Inc. 974

F. Supp. 738, 743-44 (D. Minn. 1997) ("employer can be held liable for the racial hostile work environment created by a third party.") AP v.

Anoka-Hennepin Indep. Sch. Dist. No. 11, 538 F. Supp. 2d 1125, 1146 (D. Minn. 2008). See generally Noah D. Zatz, Managing the Macaw:

Third-Par ty Hara ssers, Accommodation, and the Disaggr egation of Discriminatory Intent, 109 Colum. L.Rev. 1357, 1372-73 (2009); Karen

Kaplowitz & Donald P. Harris, Third Par ty Sexual Hara ssment: Duties and Liabilities of Employers, A.B.A. BRIEF, Spring 1997, at 32, 33-

35.

2 See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

3 See, e.g. Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir.2005) ("An employer may be held liable for the actionable third -party

harassment of its employees where i t ratifies or condones the conduct by failing to investigate and remedy it after learning of it."); Dunn v.

Washington County Hosp. 429 F.3d 689, 691 (7th Cir.2005) (finding that a hospital could be required to protect a nurse employee from

harassment by a doctor even though the doctor was not an employee of the hospital). See also Kaplowitz & Harris, supra note 1, at 36.

4 Id. at 38.

5 Fa ragher, 524 U.S. at 806; Ellerth, 524 U.S. at 765; Miller v. Kenworth of Dothan, Inc. 277 F.3d 1269, 1278 (11th Cir.2002); see also

Dunn, 429 F.3d at 691.