Lawyers get the message about abusive e-mail

Watch out - what you type on your computer could end up costing you a fortune in damages. John Carlin reports
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E-Mail harassment suits look set to become the latest gold mine for America's legal profession.

So far three major corporations have been sued for millions of dollars by black employees who allege that some of their white co-workers have been exchanging racist banter on the companies' e-mail systems. Another corporation has already settled with a woman who said she endured emotional distress after stumbling across office e-mail containing sexist jokes.

Lawyers are bracing themselves for a wave of litigation as people catch on to the fact that they can redress grievances - and possibly become very rich - by producing e-mail evidence of prejudice based on gender, sexual preference, race, nationality or age. Proving cases that depend on spoken jests and casual remarks has always presented its difficulties in court. The beauty of e-mail is that all plaintiffs have to do is retrieve it from their company's computer systems and then print it out. Plenty of material is certain to be available in a country where 80 per cent of organisation use e-mail, and where it is expected that by the year 2000 more than one billion messages will be sent a week.

One such case in Britain last week saw Norwich Union, the insurance giant, pay out pounds 450,000 after it was found that its staff had been disseminating libellous allegations about a competitor on the internal e-mail system. As with libel cases in Britain, so with harassment suits in the US - except that the sheer volume of cases brought and the scale of damages awarded is greater in the land of opportunity.

A woman who sued Chevron, the oil giant, for sexual harassment after she came across sexist jokes on the company's e-mail system won $2.2m (pounds 1.3m ) in damages, three times the amount Norwich Union paid up for libel. The jokes which caused the woman particular offence came under the headline, "Why beer is better than women".

Citibank, one of the three big companies facing racial harassment suits, is responding to a complaint by two black employees that white work colleagues have been sending each other e-mail messages poking fun at Ebonics, the name given to a form of English typically employed by black youths. One sentence cited in the case is evidently designed to ridicule the way the word "disappointment" might be rendered in Ebonics. "My parole officer tel me if I miss disappointment they gonna send me back to da big house." The Citibank plaintiffs allege that as a consequence of such exchanges they had been subjected to "a pervasively abusive, racially hostile, work environment".

Those three words, "hostile work environment", offer the legal key to understanding why companies are held accountable for the idle chatter of their employees. When such chatter is conducted by e-mail, the potential difficulties for employers only get worse. On one hand people tend to assume, incorrectly, that e-mail is as private as a telephone conversation, and as such a safe vehicle to escape the taboos imposed by American society. On the other hand, companies face potentially dicey civil liberties litigation if they poke their noses too far into the private business of their staff.

An indication of the trouble ahead was provided last week when a new software product called Assentor was unveiled which will be armed with the capacity to monitor violations of political correctness. The system may be programmed to suit the offensiveness threshold of each particular firm. Thus it might be that a message between two secretaries that contained the words "sex" or "black" - or something profane - would immediately appear on their boss's computer screen for inspection.

The Electronic Privacy Information Centre in Washington, which crusades for freedom on the Internet, denounced as "lunacy" the notion of using Assentor to censor e-mail. But no more lunatic, perhaps, than a system that allows notes between friends to become public property, meat for every litigious peeping Tom.

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