Be careful with work e-mails
Published 02/11/05

A worker could lose his job if he were to send sexually explicit joke e-mails around the office. The May 7, 2002 decision of Garrity v. John Hancock Mutual Life Ins.

Co . from the Massachusetts United States District Court illustrates this point.

In that case, Nancy Garrity and Joanne Clark, a 12-year and a 2-year veteran respectively at John Hancock were fired as employees of John Hancock due to their forwarding to co-workers sexually explicit e-mails from internet joke sites and other third parties. An investigation had ensued after a fellow worker had complained about receiving such an e-mail.

John Hancock had an e-mail policy which not only clarified that company management reserved the right to access all e-mail files, but that the inappropriate use of the company e-mail was a violation of company policy and might result in disciplinary action which included termination of employment. The definition of inappropriate e-mail under the John Hancock policy included messages that are defamatory, abusive, obscene, profane, sexually oriented, threatening, or racially offensive.

Garrity and Clark sued complaining, among other things, that their privacy was invaded. The Court disagreed. The Court noted that while Garrity and Clark claimed they believed their personal e-mail correspondence was private, the relevant inquiry as to their invasion of privacy claim was whether their expectation of privacy was reasonable. The Court noted that any reasonable expectation on the part of Garrity and Clark is belied by their own testimony that they assumed the recipients of their messages might forward them to others.

The Court further noted that, even in the absence of a company e-mail policy, which John Hancock clearly had, Garrity and Clark still might not have a reasonable expectation of privacy in the work e-mail. The Court noted that once a worker communicates an alleged unprofessional comment to a second person over the company e-mail system, any reasonable expectation of privacy was lost. Further, the Court noted that even if Garrity and Clark had a reasonable expectation of privacy in their work e-mail, John Hancock's legitimate business interest in protecting its employees from harassment in the workplace would likely trump Garrity and Clark's privacy interest.

The Court also noted that Title VII of the Civil Rights Act requires employers to take affirmative steps to maintain a workplace free of harassment and to investigate and take prompt and effective remedial action when potentially harassing conduct is discovered. Therefore, once John Hancock received a complaint about Garrity and Clark's sexually explicit e-mails, Hancock was required by law to commence an investigation.

The result in this case was that John Hancock won the wrongful discharge case brought by Garrity and Clark in that the Judge ruled the case did not need to go to trial. Such a decision is helpful to clarify to workers that they generally should have no expectation of privacy as to their workplace e-mail and should be extremely cautious in circulating through the e-mail system sexually explicit or other potentially offensive jokes.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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