Although sexual harassment is an old claim to employers, the use of e-mail as evidence is relatively new. In 2001, 8 percent of employers reported that they have battled sexual harassment or discrimination lawsuits based on employee e-mail use. 
Now, given the rise of workplace IM, employers should expect to see instant messages triggering sexual harassment claims and being used as evidence in harassment and discrimination cases.
Use your written IM policy and employee-training program to drive home the point that employees must avoid IM content that could trigger claims of a hostile work environment based on sexual comments or adult material. Prohibit employees from writing and sending instant messages that contain the following type of content:
Off-color or ‘‘dirty’’ jokes (text, photos, art, or other graphics)
Inquiries into or comments about another person’s sex life, sexual history, or sexual preference
Use of ‘‘pet’’ names (honey, sweetheart, and so on)
Sexual content of any kind
See Appendix F for a sample sexual harassment policy.
A former employee of Microsoft sued the company for sexual discrimination, alleging that she was denied a promotion because she was female. Admitted into evidence were offensive e-mails from the woman’s male supervisor.
In one e-mail, the supervisor referred to himself as ‘‘president of the amateur gynecology club.’’ In another, he called a female employee the ‘‘spandex queen.’’ Other e-mail messages from the supervisor contained a sexual innuendo referring to male genitalia, a parody of a play entitled ‘‘A Girl’s Guide to Condoms,’’ and a news story on Finland’s proposal to initiate a sex holiday.
While the court recognized that the e-mail was ‘‘not directly connected to Microsoft’s promotion and termination decisions,’’ the court nonetheless admitted the e-mail into evidence. By allowing the jury to hear evidence related to the supervisor’s general office conduct, including his use of e-mail, the court permitted the jury to infer, if it wished, that the supervisor’s attitudes toward women influenced his decision not to promote the former employee. 
Don’t risk a sexual harassment or discrimination lawsuit triggered by offensive IM content. The establishment of your strategic IM management program is a good time to update your organization’s sexual harassment and discrimination policy. As part of your IM training program, cover sexual harassment and discrimination rules, policies, and procedures, right along with your IM rules and other employment policies, too.
Employees may not use the Company’s IM system or personal IM tools and public networks to send or receive offensive, harassing, discriminatory, hostile, threatening, menacing, or otherwise inappropriate or objectionable statements or language. Employees are prohibited from sending or receiving instant messages that disparage others based on their race, color, religion, national origin, veteran status, ancestry, disability, age, ethnicity, ancestry, sex, or sexual orientation. 
‘‘2001 AMA, US News, ePolicy Institute Survey: Electronic Policies and Practices,’’ conducted by the American Management Association, US News & World Report, and The ePolicy Institute. Survey findings available online at www.epolicyinstitute.com.
Strauss v. Microsoft Corporation 1995 WL 326492 (S.D.N.Y., June 1, 1995).
Adapted from Nancy Flynn and Randolph Kahn, Esq., E-Mail Rules, New York, AMACOM, 2003.