- The Washington Times - Wednesday, October 15, 2003

Pornographic spam has become so widespread that many workers say it can contribute to a hostile work environment, a national survey says.

More than half of all respondents to the InsightExpress survey say employers have a responsibility to stop offensive, unwanted messages from entering e-mail in-boxes at work. Forty-two percent have seen a dramatic increase in the amount of spam they receive at work, nearly 10 percent of which is pornographic.

Many legal analysts said there is a growing belief that employers will be subjected to a wave of lawsuits if they don’t implement systems to stop spam.

“It really becomes a notice issue … once the employer has been put on notice, do you have an obligation to provide a safe work environment? I think you do,” said Patricia Griffith, a partner with Ford Harrison, an Atlanta law firm specializing in labor and employment issues.

Spam, which generally is considered unsolicited commercial e-mail, makes up about half of all e-mail sent worldwide. Much of it is deceptive, pornographic or both, and costs businesses billions of dollars each year, several technology research groups said.

In the InsightExpress survey of 1,500 online users from all 50 states, 62 percent of respondents said pornographic spam could contribute to a hostile workplace environment and 64 percent said employers had a duty to protect workers from unwanted pornographic e-mail.

In addition, 43 percent said they considered the incidence of pornographic spam at the workplace to be “severe,” “pervasive” or both.

Legal analysts said that would meet the legal definition for a hostile workplace, though some criticized the question as being too leading. They also questioned whether the number of pornographic messages received at work — fewer than one per day for the average person, according to InsightExpress — was truly pervasive or severe.

The survey was commissioned by Unspam, a Chicago antispam software company that has pushed for the creation of a national do-not-spam registry.

Unspam Chief Executive Matthew Prince defended the survey results, saying it showed that workers had a low tolerance for pornographic spam.

“This has been seen as a consumer issue, but it’s really a business issue,” Mr. Prince said. “What this tells us is that there is great risk for businesses.”

Many companies have policies and systems to cut down on the amount of workplace spam.

Lockheed Martin, one of the Washington region’s largest employers, said it has a variety of filtering systems in place and that it prohibits employees from accessing external e-mail accounts while at work. Other companies say they have written policies encouraging employees to delete spam immediately and to use spam-blocking features on e-mail software.

Spam-filtering companies — including Brightmail, Enterprise Security and SurfControl — have marketed their products by suggesting that filters will protect against lawsuits.

No worker has brought a harassment case against an employer for failing to stop unwanted e-mail, the Equal Employment Opportunity Commission says, but legal analysts cite precedent.

In 2001, the EEOC determined that libraries in Minnesota could be held accountable for creating a hostile workplace when patrons viewed pornographic material on library computers. The case, filed by the state’s librarians, was settled out of court but sent a message that an employer could be held responsible for the actions of a third party, those familiar with the case said.

Despite that EEOC decision, legal analysts say, only the most negligent companies would be subjected to lawsuits.

Also, harassment cases relating to pornographic spam would be difficult to prove. The legal analysts say spam does not originate from the workplace and that it may be unreasonable to ask employers to install spam filters because of their expense and because they may filter out important messages. More than 30 percent of workers surveyed by InsightExpress said they had missed important e-mail messages because of spam filters.

“Generally, employers are liable for the actions of non-employees, but only when they can reasonably control them,” said Eugene Volkh, a professor of law at the University of California at Los Angeles. “There is a question about whether it’s reasonable to ask employers to put in filters.”

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