eLessons Learned - Full Article

In an Electronic World, Always Use the Paper Trail

A higher-up sexually harasses a mid-level employee. This sounds like every company’s bi-annual Human Resources lecture, but I’ll spare the burnt coffee and “trust falls” because the details in this account provides a lesson for both employees and their employers, preventing a disastrous situation.

In this case, the harassment began with sexually explicit emails. Then came threats. Another male vice president threatened to fire the female employee’s husband if she did not have sex with him. This overhanging threat was consistently held against the employee, and she continued to yield to the VP’s sexual demands. After eight months of harassment, the employee finally sought help by contacting a female VP. No action was taken by the employer. The misconduct continued for another three months when the employee’s husband was fired. Three days later, the employee attempted suicide. Subsequent attempts occurred over the next few years.

Unfortunately, the employee did not take advantage of technological paper trails. Data storage could have prevented these harms. The first VP sent sexually explicit emails. Print these emails out. Save them to a flash drive. Even if they get deleted, most corporate policies include backing up emails for a certain period of time.

Consistent with this, leave a paper trail! Not only should the employee have warned the proper supervisor earlier, but she also should have followed up the conversation with an email providing substantive proof that the employee in need sought help. How are we certain the employee talked with the female VP? Why did the employee speak to a VP instead of contacting HR? Do we know what was said? Were her cries for help lost in coded, roundabout speech? Emails do not dance around the conversation. A harassment claim via email will force the company to take action.

Privacy settings in social media do not prevent discovery into your private digital life. Whether your page is open to the public or private to a select few, your actions on in the internet can end up before a court. The employee is linked to two different MySpace pages. One was a 39 year old, single female who does not want children. The other, created four months later, describes her as a 39 year old, married female with four kids.

The employer, the defendant in this case, was close to accessing private emails and correspondence made from these accounts. The employee claims emotional distress and trauma stemming from the sexual harassment. Again, because technology always leaves breadcrumbs, any sexual advancements or communications between her former “harassers” would refute distress claims, if found. If she is flirting with these VPs as a single thirty-nine year old with no children while online, these sexual encounters are not threatening, but invited. 

Do not think these MySpace private messages were withheld because social media privacy prevails. Agreements between social media companies and their users only extend so far. The court simply required the employer to find more evidence proving that these social media accounts were in fact the employee’s. If the employer can prove that she created these profiles, there is a strong likelihood that all correspondence between the employee and anyone associated with her allegations would be eligible for evidence. This takes private into a very public arena.

 

Stephen Bauer, a Seton Hall University School of law student (Class of 2013) focuses his studies in the area of Corporate Finance. Stephen graduated from Georgetown University in 2009 with a B.A. in Government.

 

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