The newsletter of the ISBA’s Corporate Law Departments Section
Workplace time bombs
Most companies work diligently to draft guidelines for workplace conduct and policies that address everything from sexual harassment to use of company computers and property. They do this for many reasons including an attempt to limit the liability they may be subjected to if someone were to file a sexual harassment complaint or other claim of discrimination. In this article I will attempt to address what I consider to be other potential “time bombs” that are in place at many companies and just waiting to explode into lawsuits.
In my previous life I worked as an attorney for a Dow 30 Corporation that had a very conservative culture. The corporation took sexual harassment and other forms of discrimination very seriously and had policies in place to address such conduct. On most days I would eat in the cafeteria with fellow employees. The cafeteria held probably 500 to 1,000 people at one time and came equipped with perhaps six to 10 television sets positioned so you could see and hear the television from all parts of the cafeteria. The televisions were usually set to CNN or another 24-hour news station. A funny thing would happen each lunch hour—CNN would end with a clip showing supermodels, usually half-naked strutting down the runway. I could usually tell by the looks of the females eating that they weren’t thrilled with what was on the television set. I often wondered to myself what would happen if an employee had a poster in his office of one of the women, half-naked just like what was being shown on television. My guess is the employee would be disciplined at best and the poster would be taken down.
My larger question—How is showing this type of image to everyone in the cafeteria not offensive and discriminatory, but if the same images were on an employee’s office wall they would somehow be offensive and subject to discipline? I have no idea if CNN still shows the runway models each lunch hour but I believe this illustrates what may be a hidden time bomb for companies. This scenario presents two problems. First, female employees could claim this subjects them to sexual harassment and illustrates a good-old-boy culture. As a plaintiff’s attorney who concentrates on sexual harassment cases, my eyes get big thinking of how nice it would be to blow up these pictures and hand them to the CEO or Human Resource Manager on the witness stand and have them explain how this doesn’t subject their female employees to sexual harassment.
The second problem is for those male employees that do engage in sexual harassment at work, this type of corporate behavior may give the employee an out. A good lawyer would argue that the conduct of the employee being accused of sexual harassment is not as severe or offensive as what is being broadcast to the entire corporation each lunch hour. Additionally, the man accused of sexual harassment could claim that it was the lingerie-clad models strutting down the runway that he was viewing at lunch that got his brain thinking in a manner not consistent with work and therefore the corporation set the events in motion by its behavior.
My main point here is that it would be prudent for someone at a corporation to view what is being shown on television to employees and make sure the content is appropriate. Most corporations filter their computer networks so employees can’t view this type of material, so why show it at the cafeteria?
Another time bomb that I believe is sitting hidden at most companies are the use of text messaging on company phones. Ask the average employee—even management employees—if once they delete a text message does it stays deleted and they will say yes.
However, even after you delete a text message it still resides on your phone and can be retrieved. How long it stays on your phone depends on the memory capacity of the phone and how many other text messages are sent, received and deleted. The problem with text messages is they tend to be short, quickly sent and may have more casual overtones than an e-mail. That is, someone is more likely to send something that could be seen as not business-appropriate.
Additionally another problem may arise with the issue of spoliation of evidence regarding text messages. Once a company is put on notice of pending litigation, for this example let’s say there is a sexual harassment claim, the company has a duty to preserve evidence. Most companies would send out a litigation hold on e-mails and written documents and files, but how many confiscate the phones of all involved? If you don’t take the phone and only check the text messages that still visibly reside on the phone, in my opinion you are subjecting yourself to spoliation of evidence claims. By allowing the person to use the phone after you check it for messages, the person will be deleting those messages that were deleted but still retrievable with special software. By the time opposing counsel gets the phone there will be no messages to retrieve that relate to the litigation and a good attorney would make an argument for spoliation.
I believe a litigation hold should include taking all phones from people involved and securing them until the matter is concluded. These are two time bombs which I believe exist in most companies and which should be addressed. ■