Employers Potentially Liable for Harassing Postings on Electronic Bulletin Boards

November 17, 2000

The world and the traditional office collided head-on in New Jersey and when the e-smoke cleared, an employer found itself potentially liable for cyberspace harassment. In Blakey v. Continental Airlines, Inc., a decision that sent shock waves across the e-world, the New Jersey Supreme Court ruled that an employer may be liable for workplace harassment resulting from its employees' harassing e-mail postings on an electronic bulletin board if it fails to take remedial action. The Court rejected Continental's argument that it did not control the electronic bulletin board and, therefore, could not be responsible for its harassing contents.

Blakey, a Continental pilot, complained of a sexually hostile work environment. After the commencement of Blakey's sex discrimination lawsuit, a number of Continental's male pilots posted derogatory and insulting remarks about her on the pilots’ on-line bulletin board called the Crew Members Forum ("Forum"). The Forum, accessible to all Continental pilots and crewmembers through an outside Internet service provider approved by Continental, contained flight information, crewmember schedules, and pay and pilot pairings. Continental required its pilots and crewmembers to access the Forum to obtain their flight schedules and assignments. The Forum also provided a source for pilots and crewmembers to exchange both business and personal ideas and information.

The court likened the Internet bulletin board to the old-fashioned bulletin board in a workplace lounge in that the Forum was beneficial to Continental, which used it to convey important information necessary to the performance of crewmembers' jobs. Therefore, although an electronic bulletin board may not have a physical location at the workplace, it may nevertheless be so closely related to the workplace environment and beneficial to the employer that harassment on the bulletin board should be regarded as a part of the workplace. The court further stated that, while an employer does not have a duty to monitor private communications, an employer does have a duty to take effective remedial measures to stop coworker harassment when it knows or has reason to know that the harassment is occurring in the workplace - or in cyberspace - and in settings that are related to the workplace.

The Blakey decision is precedent setting in that it is the first case in the United States imposing potential liability on an employer for cyberspace harassment. Employers can no longer disregard an employee's actions in cyberspace just because it occurred outside the traditional four walls of the workplace. Employers now have an obligation to stop any unlawful harassment or discrimination occurring in the cyberspace workplace once they are put on notice of the inappropriate conduct. This case underscores the importance of employers promulgating and supporting an active, anti-harassment policy, including Internet and e-mail policies.

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