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.
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