Sexual Harassment: Limiting the Affirmative Defense in the Digital Workplace

Digital communications sexual harassment is on the rise. Such harassment occurs through sexually offensive and unwarranted e-mails, placing harassing messages on electronic bulletin boards, and other forms of harassment that occur through the Internet. To date, courts have remained silent on the issue of sexual harassment by digital communications. Should this type of harassment be treated any differently than harassment that occurs in the physical space? The somewhat surprising answer is yes.

This Article advocates applying a new judicial framework for addressing digital communications sexual harassment. This new framework accounts for the real-world technology in the digital workplace and the legal framework that courts have constructed in connection with affirmative defenses to harassment. An employer’s ability to monitor and block digital communications and thus prevent sexual harassment is the fundamental difference between digital and physical sexual harassment and the underlying reason for treating them differently and for modifying the affirmative defense. The Article proposes that when an employer fails to utilize available technology to prevent sexual harassment, the affirmative defense should be either modified or altogether unavailable. Adopting this approach, courts would appropriately place an affirmative obligation on employers with blocking and monitoring technology to take reasonable preventative measures to prevent digital workplace harassment.