Friday, December 2, 2011

Ranking Workplace Porn Emails - COTW #69

In Hodczak v. Latrobe Specialty Steel Company, the Third Circuit analyzed an age discrimination claim brought by employees who were fired for exchanging "sexually explicit" emails at work. Third Circuit, discrimination, and porn? You know that's gonna be a Case of the Week! The employees claimed they were terminated while younger employees, who also had some workplace porn, were not terminated.

One interesting aspect of the case is that it sheds light on how the employer differentiated the levels of workplace porn activity. For example:
In deciding the appropriate level of discipline for each employee, LSS considered the nature and volume of the emails exchanged, whether they were sent to individuals inside or outside the company, and whether they were sent to customers or vendors.
Sounds reasonable. One sidenote, the employer looked at the "nature" of the emails. I always thought cases like this should include the content in question... not because I want dirty pictures (I'm guessing there are better places to find porn on the Internet than Westlaw), but so that we can get a feel for exactly what these guys were sharing. But I digress...

The Court also did some ranking of the emails. As part of a discrimination claim, it helps to show that "similarly situated" individuals were treated differently. The Court found:
[T]he persons identified by Appellants are not similarly situated. Carl Dorsch is not similarly situated to Appellants because, although he accessed pornographic websites on his work computer, he was a non-supervisory employee and he did not send the content to anyone else. Likewise, Robert Smith is not similarly situated to Appellants because there is no evidence that Smith actually sent sexually explicit emails . . . . Conrad is not similarly situated to Appellants because he sent only one email and did so from his personal computer. In contrast, Appellants exchanged sexually explicit emails on nearly a daily basis.
Good to know. I think we have some solid takeaways regarding dirty emails in the workplace here:
  • It's worse when supervisors do it;
  • Using workplace computers is worse than using personal computers;
  • Sharing is worse than viewing;
  • More is worse than less;
  • The "nature" of the emails matters; and
  • Sharing externally (especially with customers and vendors) may be worse than sharing internally (That 's the employers view, but I'm not sure I agree... internally could have a greater chance of spawning sexual harassment claims).
HT: Molly DiBianca - Employees Fired for Pornographic Emails Lose Age Discrimination Case.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.