A number of recent cases exemplify the varying ways in which e-mails have been used in employment-related cases.

In Curtis v. Dimaio, the U.S. District Court for the Eastern District of New York found that e-mails circulated among white employees of Citibank did not create a “racially-hostile environment” for African-American plaintiffs who alleged racial discrimination on the basis of the e-mails.

In the case, the African-American former employees of Citibank alleged that they “were forced to work in a racially-hostile environment” because the defendants sent e-mail messages to each other and several additional white employees that allegedly were offensive to African-Americans. The defendants were the Citibank employees that circulated the e-mails. Citibank was not named as a defendant to the case.

Among the undisputed facts in this case were that the defendants sent the e-mails in question to the private e-mail addresses of the recipients and did not show them to anyone other than the parties to whom the messages were sent. It was also undisputed that these defendants never authorized, expected or intended that the e-mails be seen by anyone other than the recipients.

The court held that while the plaintiffs were members of a protected class, their claim failed because they were unable to demonstrate that their workspace was “permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions” of their work environment. The court added that the plaintiffs weren't “able to demonstrate a specific basis for imputing such conduct to the employer or that the employer countenanced such conduct at all.”

“Hostile work environment claims are meant to protect individuals from abuse and trauma that is severe. They are not intended to promote or enforce civility, gentility or even decency,” the court said.

In a more recent case, Intel Corp. v. Hamidi, a California appeals court ruled that a former employees unauthorized use of a companys e-mail system constituted trespassing.

According to court papers, after the defendant was fired by Intel in 1995, he began to air grievances about the company through e-mail. Despite Intel's requests that he stop, he repeatedly flooded Intel's e-mail system with messages that were sent to as many as 35,000 employees. After Intel's security company proved unable to block the e-mails, Intel asked a trial court to issue a permanent injunction stopping the e-mail campaign. The company sought no damages.

In ruling for Intel, the Court stated that Intel “showed it was hurt by the loss of productivity caused by the thousands of employees distracted from their work and by the time its security department spent trying to halt the distractions.”

The court also held that First Amendment protections did not apply in this situation inasmuch as “the Intel e-mail system is private property used for business purposes. Intel's system is not transformed into a public forum merely because it permits some personal use by its employees.”

In Mota v. University of Texas Houston Health Science Center, the 5th Circuit Court of Appeals considered a post-verdict e-mail. In that case, a University of Texas Houston professor brought an action claiming sexual harassment and retaliation. Following trial, the jury rendered a verdict for the plaintiff, which included an advisory award for front pay.

In considering the jury's advisory award, the district court took into account the university's post-trial conduct. After initially reducing the jury's recommended award to reflect only 10 years of lost future wages, the court added five additional years of front pay based on an e-mail sent by the university president to all university employees.

In the e-mail, the president expressed his disappointment over the jury's finding of retaliation. The district court portrayed the e-mail as attempting to present the plaintiff “in the worst professional light possible.” The court also concluded that this behavior, which was a continuation of the vindictive behavior demonstrated at trial, would affect the plaintiff's future work prospects. The 5th Circuit affirmed.

A final case, Anderson v. U.S.F. Logistics (IMC) Inc., considered the question of whether an employer failed to accommodate an employees religious belief by enforcing certain employment policies regarding the use of its e-mail system. The plaintiff in this case sued under Title VII of the Civil Rights Act of 1964, alleging that U.S.F. failed to accommodate her sincere and meaningful religious practice and belief in connection with her inclusion of the phrase “Have a Blessed Day” in her workplace e-mails.

As an office coordinator, the plaintiff regularly received and sent e-mails to Microsoft, her employer's customer. Microsoft expressed to the plaintiff that it “had a problem with her use of the “Blessed Day” phrase in business communications. As a result, the plaintiff was instructed by her employer not to use the “Blessed Day” phrase with outside vendors or customers, but she was permitted to use her religious phrase in written and verbal communications with co-workers and supervisors. The plaintiff alleged that she was entitled to an accommodation as the result of her religious beliefs.

In finding for the employer and denying the plaintiff's request for a preliminary injunction, the U.S. District Court for the Southern District of Indiana held that “[d]efining [the plaintiff's] religious practice in the manner in which she has described it, U.S.F.'s accommodation was reasonable.”

“By permitting [the plaintiff] to use her religious phrase in written correspondence and verbal communications with co-workers and supervisors, U.S.F. did all that was required of it under Title VII. U.S.F.'s reasonable accommodation eliminated the conflict between [the plaintiff's] religious practice and U.S.F.'s employment requirement that religious phrases not be used in verbal or written communication.”

These cases illustrate the fact that employment claims involving e-mails are on the rise and that e-mails can be used in employment cases in varying ways.

Insurers are in a unique position as they are both employers and insurers of employers. While the employer prevailed in most of the cited cases, there are many others in which companies settled, incurred large defense costs or had less favorable resolutions of employee claims based upon improper use of company e-mail systems.

As a result, employers must be sensitive to the use both they and their employees make of their e-mail systems.

Attorney Janet M. Helmke is counsel with the Hartford office of Edwards & Angell LLP (www.ealaw.com), a full-service international law firm which includes a U.S. insurance and reinsurance practice group.

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, May 20, 2002. Copyright 2002 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.