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Electronic Bulletin Boards May Be Regarded as Part of the "Workplace" for Purposes of Harassment and Discrimination Laws

June 26, 2000

On June 1, 2000, the New Jersey Supreme Court unanimously ruled that offensive messages posted on an electronic bulletin board may constitute harassment in the workplace, in violation of Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, and applicable state and city statutes. In reversing the decisions of the trial and appellate courts below, the state's highest court confirmed that an employer's "workplace" may extend beyond its physical premises to cyberspace. Moreover, the Court concluded that while employers do not have a duty to monitor employees' private communications, they do have a duty to take effective measures to stop co-employee harassment when they know or have reason to know that such harassment is part of a pattern of harassment taking place in the workplace and in settings related to the workplace. Blakey v Continental Airlines, 751 A.2d 538, 2000 WL 703018 (N.J. June 1, 2000).

Blakey -- a female pilot employed by Continental Airlines -- sued Continental and several individual coworkers who had posted offensive messages about her on an electronic (on-line) bulletin board, known as the "Crew Members Forum." The Crew Members Forum was maintained by CompuServe in conjunction with an internal Continental website where schedules and flight assignments for pilots and crews were posted. The messages at the heart of Blakey's state court lawsuit criticized her for bringing an earlier federal harassment and retaliation lawsuit against Continental; the messages claimed, among other things, that Blakey's allegations in the federal case were false, that the lawsuit was motivated by greed and selfishness, and that she had poor piloting and interpersonal skills.

The trial court dismissed the case, and the Appellate Division affirmed, concluding in part that Continental was not vicariously liable for the allegedly harassing messages posted electronically by its employees, because the electronic bulletin board was not a "workplace" for purposes of employment discrimination law.

The New Jersey Supreme Court reversed and remanded, concluding that, if the electronic bulletin board was beneficial to Continental and was closely related to Blakey's workplace environment, it should be considered part of the workplace and could give rise to a colorable claim of hostile environment sexual harassment. The Court emphasized that, "the fact that the electronic bulletin board may be located outside of the workplace . . . does not mean that an employer may have no duty to correct off-site harassment by co-employees. Conduct that takes place outside of the workplace has a tendency to permeate the workplace. Id. at *8. On remand, the trial court was directed to determine whether, in fact, Continental had notice of the offensive messages, and "whether the Crew Members Forum was such an integral part of the workplace that harassment on the Crew Members Forum should be regarded as a continuation or extension of the pattern of harassment that existed in the Continental workplace." Id. at *9

The Blakey decision confirms that employers must respond promptly and effectively to all forms of harassing conduct directed at, or committed by, their employees. This obligation extends beyond an employer's physical premises, and includes the use of the employer's e-mail system and other modes of electronic communication made available to employees by, or on behalf of, the employer.