SEXUAL HARASSMENT ON THE INTERNET

INTERNET HARASSMENT

Picture
Sexual harassment has been a prevalent issue in our society and in the legal system for over fifty years.  The ever-increasing use of the Internet in the past twenty to thirty years has served as a medium for sexual harassment that has, until recently, gone relatively unnoticed.  While the Internet has provided an array of benefits and advantages for today's society, its darker side has substantially emerged as Internet users are being subjected to online discrimination, sexual harassment, identity theft, cyberstalking, and cyberbullying on a daily basis.

Sexual harassment on the Internet can occur in a variety of ways and through a variety of mediums.  Some of these mediums include, but are not limited to:
                                 (1)  Chat rooms;                                  
                                 (2)  Internet forums/message boards;     
                                 (3)  Social networking sites;                   
                                 (4)  Instant messaging;
                                 (5)  E-mail;
                                 (6)  Avatars;
                                 (7)  Flame wars
                                 (8)  Internet Advertising
                                 (9)  Redirected/automatic linking
                                (10) Spam
                                (11) Pop-ups


What are the main forms of sexual harassment encountered on the Internet?

Picture
As mentioned above, sexual harassment on the Internet can occur in a number of ways.  A common form of sexual harassment on the Internet occurs when a harasser sends unwanted, abusive, threatening, or obscene messages to a victim via e-mail or instant messaging.  Another common form of Internet harassment occurs when a victim is subject to unwanted, abusive, threatening or obscene messages and/or comments on internet forums, blogs, and discussion boards. 

The majority of sexual harassment activity on the Internet can be categorized into one of the following:
Gender Harassment
Gender harassment can be communicated in both verbal and graphic forms.  It is often described as "unwelcome verbal and visual comments and remarks that insult individuals because of their gender or that use stimuli known or intended to provide negative emotions." Azy Barak, Sexual Harassment on the Internet, 23 Soc. Sci. Comp. Rev. 1 (2005)

Verbal gender harassment refers to offensive sexual messages aimed towards a victim that are initiated by a harasser.  Such offensive messages include gender-humiliating comments, rape threats, and sexual remarks which are unwelcome, and are neither invited nor consensual.  Verbal harassment can be either passive or active depending on whether the harasser targets a specific victim (active) or targets potential receivers (passive).

Graphic gender harassment refers to the intentional sending of erotic, pornographic, lewd, and lascivious images and digital recordings by a harasser to specific or potential victims.  Graphic harassment often occurs via email, instant messaging, redirected/automatic linking, and pop-ups. 

Unwanted Sexual Attention
Unwanted sexual attention on the Internet occurs when a harasser uses direct personal communication to harass a victim.  Additionally, the harasser uses personal communication to convey messages directly relating to sex and/or sexuality which are unwanted or unwelcome by the victim.  Such messages often:
    (1) refer to the victim's sex organs;
    (2) refer to the victim's sex life;
    (3) refer to intimate subjects;
    (4) impose sex-related images or sounds; or
    (5) insinuate or offer sex-related activities.
Furthermore, a harasser who uses unwanted sexual attention to harass a victim online, intends to solicit sexual cooperation from his/her victim either on the Internet or in person.

Sexual Coercion
Sexual coercion is the least common form of sexual harassment encountered on the Internet.  Sexual coercion uses various means online to obtain sexual cooperation by placing pressure on a victim.  This pressure is often achieved by the use of explicit threats of harm directed towards the victim or relatives and friends of the victim. 

Sexual coercion is substantially seen more in cyberstalking.  For more information on cyberstalking, click here.


TITLE VII AND INTERNET HARASSMENT

Picture
The emergence of Internet mediums as the most common method of communication has introduced new elements into combating sexual harassment in the workplace.  Today, employers need to be vigilant not only to what is said and done in the physical office, but what is being said and done in the virtual office as well.  A recent New Jersey Supreme Court case highlights this new territory of employer liability under Title VII for Internet harassment. 

Blakey v. Continental Airlines, 751 A.2d 538 (N.J. 1999)
Plaintiff, Blakey, became the first female captain to fly an Airbus or A300, qualifying in 1989.  Shortly after her appointment, she complained of conduct and comments directed at her, including pornographic photos and vulgar gender-based comments about her that appeared in the workplace. 

In 1993, Blakey filed a complaint for sexual discrimination in violation of Title VII of the Civil Rights Act.  During litigation, Blakey's co-workers continued to make harassing, gender-based messages aimed at her, which were posted on a company website.  The website was used by Continental employees, including pilots and crew members, and was created for the purposes of learning flight schedules and assignments.  Additionally, the company's Internet service provider (CompuServe) created a forum available to employees which enabled them to virtually exchange ideas and information.  The forum operated as an online bulletin board where employees could post messages to one another. 

Blakey filed suit in the Superior Court of New Jersey, alleging sexual harassment through a hostile work environment based on the disparaging comments posted about her on the online forum.

The Supreme Court of New Jersey held that harassment outside of the workplace can be actionable.  The Court noted that the conduct at issue arose out of employee relationships and was therefore relevant, regardless of where the harassment occurred.  Furthermore, the Court held that an employer may not disregard offensive messages posted on a company website when the employer is aware or should be aware of the messages.


TITLE IX AND INTERNET HARASSMENT

Picture
Similar to Internet harassment occurring in the workplace, Internet harassment in the education setting has become a vital concern to schools and school districts.  Individuals are increasingly beginning to use the Internet at younger ages and for a wider variety of reasons including in the school setting.  Particularly, the use of the Internet for social networking reasons and use in the school environment has created a dangerous outlet for sexual harassment.

Furthermore, the United States Department of Education has recognized Internet activity such as sending or showing e-mails, websites, and text messages of a sexual nature to be inappropriate sexual conduct that can potentially be actionable as sexual harassment in violation of Title IX. 


Sauerhaft v. Bd. of Educ., Hastings-on-Hudson Union Free Sch. Dist., 2009 WL 1576467 (S.D.N.Y 2009)

Plaintiff, Sauerhaft, filed this suit on behalf of his daughter, S.S., in response to three harassing e-mails she received on her school e-mail account as a freshman at Hastings-on-Hudson High School over the course of ten days by a male student in March of 2005.  The male student, also using his school e-mail account sent S.S. messages based on topics such as her weight and sexual activity.  Shortly after, S.S. printed out the e-mails and showed them to her guidance counselor who brought the matter to the attention of her supervisor and the school's principal. 

The plaintiff brought this claim against the defendant school district asserting that the harassing e-mails constituted student-student sexual harassment under Title IX.  The District Court for the Southern District of New York used the requirements set out in Davis v. Monroe County Board of Education to determine whether the defendant school district could be held liable for student-student sexual harassment.  Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, (1999).  The court expressed that in order for a plaintiff to "prevail on a Title IX student-on-student harassment claim against a school board, a plaintiff must show:"
     (1) that the school board was a recipient of federal funds;
     (2) that it "act[ed] with deliberate indifference to known acts of
          harassment in its programs or activities;" and
    (3) that the harassment was "so severe, pervasive, and objectively  
         offensive that it effectively bar[red] the victim's access to an
         educational opportunity or benefit."
The court held that although the three e-mails sent to S.S. were offensive, they failed to constitute harassment which was so severe and pervasive as to bar S.S. from access to an educational opportunity.  Accordingly, the defendant school district was not held liable.
 
The Department of Education and JuicyCampus: Can schools be liable for sexual harassment conducted on anonymous gossip blogs?
In 2009, the Department of Education and the New York Office of Civil Rights (OCR) received a complaint from a parent of a student at Hofstra University.  The complainant alleged that the University had failed to properly respond to complaints that her daughter had been subjected to sexual harassment on the college campus gossip blog, JuicyCampus (shut down as of February 2010).  The complaint alleged that students were posting sexually explicit messages on the gossip blog about the complainant's daughter. 

In its investigation, the New York OCR learned that the student had expressed her concerns about the messages to Hofstra's administration and requested that the University remove the messages and shut down the website.  The University responded that it could not fulfill either of these requests because the website was controlled by off-campus entities.  Additionally, the University suggested that the student contact the webmaster of the site and the Office of Public Safety to file a public safety incident report. The New York OCR also determined that the student had failed to provide adequate information to permit the University to properly investigate the alleged sexual harassment as the student failed to provide her identity and was unable to provide the identities of the alleged harassers.  

Accordingly, the New York OCR determined that there was insufficient evidence to conclude that the University had failed to respond to the student's complaint of sexual harassment and that therefore an action in violation of Title IX could not be pursued.

The Hofstra complaint raised many issues as to how far a school's liability would extend for internet harassment.  While the law on this subject has yet to be fully developed, the courts appear to be applying the standards established in Gebser and Davis to student complaints involving sexual harassment on the Internet.  In applying these rules, both the courts and the Department of Education are hesitant to make schools and other funding recipients liable under Title IX for harassment conducted by anonymous harassers and on third-party websites over which schools has no control.  


Katie Couric Sounds Off About JuicyCampus:


REFERENCES: