Worker may sue for harassment outside the workplace, court rules.

In a case involving the alleged sexual harassment of a female commercial airline pilot, the New Jersey Supreme Court ruled in June that under certain circumstances employers must protect workers from harassment that takes place outside the workplace. (Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 2000).)

The case involved an electronic bulletin board that was part of an employee Web site that Continental Airlines contracted an outside company to maintain. Pilots and crew could access the site through the Internet to check flight information, crew member schedules, and pilot pairings, and they could post messages to the bulletin board to exchange ideas and information.

Tammy Blakey, who had been a pilot for Continental since 1984, filed suit against the airline for failing to take action against male pilots who allegedly posted derogatory remarks about her on the bulletin board. According to the company, Continental management is not permitted to post or reply to bulletin board messages, but its chief pilots and assistant chief pilots--who, Blakey claimed in her suit, are considered management within Continental--have access to them.

The lawsuit alleges that Blakey gave notice of the comments by forwarding copies of offending messages to Continental's counsel and that the airline failed to take any action. Blakey had earlier filed a more traditional hostile environment claim against Continental, alleging that male coworkers made vulgar gender-based comments and stashed pornographic photographs in her planes' cockpits and other work areas.

The second lawsuit raised the question of whether a work-related electronic bulletin board is equivalent to a traditional cork bulletin board in an employee lounge. On appeal, the New Jersey Supreme Court ruled 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 offsite harassment by co-employees. Conduct that takes place outside of the workplace has a tendency to permeate the workplace." The court considered past cases in which it recognized that harassment by a supervisor that takes place outside the workplace is actionable.

Duty to remedy

Writing for a unanimous seven-judge panel, Justice Daniel O'Hern said that "employers do not have a duty to monitor private communications of their employees." But he added that "if the employer had notice that co-employees were engaged in such a work-related forum in a pattern of retaliatory harassment directed at a co-employee, the employer would have a duty to remedy that harassment."

He continued, quoting a previous case the court decided, "Severe or pervasive harassment in a work-related setting that continues a pattern of harassment on the job is sufficiently related to the workplace that an informed employer who takes no effective measures to stop it `sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser.'"

The ruling lets the case take a small step forward. Blakey's attorney, Linda Kenney, may now take depositions, but before a trial can take place, a state trial judge in Essex County must determine whether the remarks on the electronic bulletin board were severe enough to be considered harassment. The judge must also decide whether Blakey adequately alerted Continental to the harassing comments and if the bulletin board benefited the airline in any way. If the court finds that Continental made a prompt effort to stem any harassment, the case will be dismissed.

Kenney, who practices law in Red Bank, New Jersey, said, "The New Jersey Supreme Court is the first court in the nation to recognize that the scope of the workplace is changing. If these comments had been posted on a traditional bulletin board, there would have been no doubt about corporate responsibility. The Internet is only a new bulletin board, and the court recognized that."