posted on Tuesday, January 22, 2008 12:38 PM
by
Lou Michels
IM, R U?
The dangers of email in a litigation context are well documented. Because email appears to be transitory, but actually can exist in some form for years, businesses are constantly advising their managers not to put something in an email message that would embarrass them if it came out on the front page of the local paper.
Instant Messaging, or "IM", tends not to have the same concerns associated with it. Unlike email, IM messages are typically erased when the conversation terminates. They are more ephemeral than even cell phone text messages and it's unusual to find a case in which IM'ing plays a substantial role as evidence.
Of course, all of this is leading up to just such a case. The plaintiff, seeking immediate employment following college graduation, took a job with a temp agency that placed her with a cell phone company. She worked in the administrative group and was supervised by a front-line manager. Within six months, the plaintiff left her job, telling her temp employer that she could no longer work there because she could not endure the manager's conduct. Specifically, she alleged in her lawsuit that she was being sexually harassed, assaulted, falsely imprisoned, and constructively discharged.
Up to this point, a familiar tune. What makes this case stand out is the fact that while she was employed, the plaintiff and the manager engaged in frequent sexual bantering on IM, which the plaintiff apparently copied and pasted into a more permanent record. The trial court quotes pages and pages of this flirting, some with fairly graphic details.
After wading through all of this, the first impression you get is that these people deserve each other, even though one had a steady boyfriend and the other was married. The second impression is that it's almost impossible to imagine something more embarrassing than having this kind of sappy dialogue published in a federal court opinion. The final impression, one that is shared by the court, is that whatever sexual banter was present in the office, it was present in a mutual form. In other words, the IM, which the plaintiff submitted as evidence of sexual harassment against her, clearly shows that the conduct she complained of was not only welcome, it was encouraged.
The company dodged a bullet on this one, although I suspect that the manager no longer works there. The moral of this story is that no matter how impermanent these messages may seem, if someone wants to, they can be made permanent very easily. IM is no protection against a terminal case of foolishness.