Court Evaluates Employer Liability For Electronic Bulletin Board Comments
 
July 1, 2000
 

In 1995, Tammy S. Blakey, a “highly qualified commercial airline pilot,” was embroiled in litigation against Continental Airlines involving her allegations of sexual discrimination, retaliation and hostile work environment. During the pendency of this litigation, Blakey’s fellow pilots engaged in strongly worded and often derogatory “discussions” regarding Blakey and her claims. The derogatory comments ranged from mild disagreements with the nature and existence of Blakey’s federal litigation to vituperative insults and accusations that Blakey had “burned up” airplane engines “by overtemping” and that she had “crashed [her] floatplane . . ..” Blakey v. Continental Airlines, Inc. (N.J. Jun. 1, 2000).

These discussions were posted on an electronic bulletin board called the “Crew Members Forum,” an online bulletin board that was part of the company’s information technology network. The Forum could be accessed only via an Internet connection. Continental contracted with CompuServ, an Internet Service Provider, to provide the Forum as a means for crew members and pilots to exchange ideas and information.

Initially, the court concluded that the employer did not have a duty to monitor the Forum. However, “it is possible that a jury could find that Continental had knowledge, either direct or vicarious through managerial employees, of the content of certain messages posted on the Forum.” The court framed the issue as whether the Forum was the “equivalent of a bulletin board in the pilots’ lounge or a work-related place in which pilots and crew members continue a pattern of harassment.” The court stated that the mere location of an electronic bulletin board outside the workplace does not eliminate the employer’s potential duty to correct off-site harassment by co-employees. The court also was influenced by the fact that Continental required its pilot and crew to access its information technology system (but not necessarily the Forum) in order to learn their flight schedules and assignments.

Blakey claimed that she had given notice to Continental of the offensive messages on the Forum by forwarding copies of the “threads” to Continental’s counsel. The court noted that if this allegation were proven, liability would depend on an evaluation of the nature of the Forum, i.e., whether it was “such an integral part of the workplace” that harassment on the Forum should be regarded as a “continuation or extension of the pattern of harassment that existed in the Continental workplace.” Thus, the trial court now must determine whether Continental derived a “substantial workplace benefit” from the overall relationship between Continental, CompuServ and the Forum. While the court cautioned that its opinion should not be construed as conferring a duty on employers to “monitor employees’ mail,” the court suggested that “employers may not disregard the posting of offensive messages on company or state agency e-mail systems when the employer is made aware of those messages.”

For more information please contact Susan Tillotson Mills at 1-888-688-8500 or at smills@hklaw.com.