Accessing Pornographic Websites, Quirky Question # 109

Quirky Question # 109:

We recently discovered that one of our company’s computers was used to access pornographic websites.  Many different employees had access to this computer, but we believe we know who is responsible.  In part, our conclusion is based on the fact that he is the only male employee who has access to that computer. We’re thinking about terminating his employment based on our impressions.  Frankly, we would rather be sued by him than by our female employees who use that computer, a number of whom complained about the pornographic websites that now often pop up on the computer.  Any risks associated with terminating the male employee?

Dorsey’s Analysis:

Whoa, slow down! As one of our readers remarked in response to this question, don’t jump to the conclusion that the person responsible for accessing the pornographic Websites is your male employee, simply because only one male employee had access to the computer in question. (See the reader’s reaction below.) Although your intuition may be correct, and your male employee may indeed be the person who visited the pornographic Websites, it would be imprudent for you to terminate this employee before conducting an appropriate investigation.The investigation could consist of several parts. First, presumably a forensic analysis of the computer in question should enable your company to determine which sites were accessed and when.

Second, you could compare the times these sites were accessed with your employees’ work records. If, for example, your work records demonstrated that your male employee was on vacation during a week when the pornographic Websites were repeatedly accessed, that is pretty exculpatory evidence. Conversely, if he was the only employee working when the Websites were being contacted, the opposite inference is warranted.

Third, you should evaluate whether employees needed to log on to access the computer. If so, this could reveal important information to you.

Fourth, regardless of the outcome of your forensic analysis, I recommend that you interview the employees who had access to the computer. Find out what the employees have to say about their use of the computer, their access to the Websites, etc. Discharging an employee without at least interviewing him or her about the wrongful conduct will likely have at least three consequences: a) it will increase the likelihood that your decision is misguided or based on erroneous data; b) it will increase the likelihood of litigation by the discharged employee; and c) it will increase the likelihood that the fact-finder, whether judge or jury, will perceive your approach to have been procedurally unfair. Gather the pertinent facts. Give the employees a chance to offer any exculpatory evidence. Consider the information collected during the interview process. Then, make your decision.

Fifth, it is possible that just one employee accessed the pornographic Websites. But, it also is possible that multiple employees were visiting the sites. If both male and female employees were accessing the Websites and there was not a demonstrable distinction in their conduct, it would be unwise for you to terminate or otherwise discipline just one of those employees. If, however, there were significant differences in the employees’ conduct, a differential disciplinary response may be appropriate. For example, one of the employees may have been responsible for visiting the sites or adding them to a “Favorites” list, while other employees simply may have accessed them once they were available. Similarly, one of the employees (or several of the employees) may have accessed the sites frequently, whereas for others, there may have been one and only one visit. For example, one of the employees may have forwarded information or pictures from the Websites to others in your company, whereas other employees may not have. These, or other distinctions, may warrant a different disciplinary response.

Some of these issues were recently addressed by the Seventh Circuit Court of Appeals in the case of Farr vs. St. Francis Hospital and Health Centers, No. 08-3203 (June 29, 2009). Farr sued the defendant hospital for sex discrimination after being discharged. Farr, one of seven respiratory therapists at St. Francis (and the only male in that position), shared a computer with the other respiratory therapists. Although the computer required the employees to log on with a user name and password, and although employees were supposed to log off when they were finished using the computer, the standard practice was that one employee would log on in the morning and all of the employees would use the computer under that person’s name throughout the course of the day.

One employee noticed that several “lurid” and “obscene” Websites had been added to the computer’s “favorites” list and notified HR of this issue. Farr was the person who had logged on to the computer at the time the Websites were accessed. Farr was interviewed and denied knowledge of why the sites had appeared at the time he was logged on to the computer. Consequently, the computer was then sent to the hospital’s Information Services Department for a forensic analysis. After the IS Department analyzed the hard drive, it wiped the hard drive of all information, without imaging the hard drive. (Needless to point out, this is not a best practice and would not have been done by any competent forensic analyst. The hard drive itself or a copy of the hard drive should have been retained.)

St. Francis then compared the times when the computer was used to access the Websites with the respiratory therapists’ work schedules. That comparison showed that Farr was the only employee who had worked on a particular Sunday when the computer had been used extensively to access the pornographic Websites. (The computer also had been used to access “hacking” Websites, an issue of equal concern to the Hospital.) Farr was interviewed a second time and still denied using the computer for inappropriate purposes. Consequently, further investigation was conducted, which corroborated the fact that other employees had not used the computer to access the pornographic or hacking Websites. Based on the investigations conducted, Farr was fired.

Farr then sued for sex discrimination, contending that he had been fired because he was a male. Farr retained his own forensic computer expert. Farr’s expert determined that the pornographic Websites had been added to the computer through “mal-ware” (malicious-software) when it was otherwise being used for a proper purpose and without Farr’s knowledge. Nevertheless, in connection with the information he provided his own expert, Farr admitted accessing 17 of the 31 Websites at issue. Farr reiterated these admissions when he was deposed.

Farr attempted to prove his case with both direct and circumstantial evidence. As the appellate court pointed out, when the person claiming discrimination is a member of the majority, he “must set out ‘background circumstances’ that show the employer discriminates against the majority or he must show that there is something ‘fishy’ going on.” (Citations omitted.) [Frankly, I was unfamiliar with this precise legal standard – in the future, I will have to test the factual patterns of my cases against the “something fishy” standard.]

Farr’s initial complaint was that he was the first person investigated about the pornographic sites, a fact he attributed to his gender. The appellate court quickly dispensed with that argument. “That complaint would have more force if it were not also true that he was not the person logged on to the computer at the time the sites were visited. It seems quite sensible (and hardly discriminatory) to begin an investigation with the person who officially was logged on to the computer.”

The court also rejected Farr’s argument that regardless of who had been investigated first, he was fired because of his gender. As the court pointed out, he was fired because the “investigation convinced the employer that he was the one accessing the inappropriate Web sites. In fact, he admitted it.” Finding that Farr had not established anything “fishy” about his discharge, the Seventh Circuit affirmed the lower court’s grant of summary judgment for the employer.

In the Farr case, the employer got it right – it conducted an appropriate investigation to ascertain the underlying facts. Based on the information adduced in the investigation, it made an appropriate termination decision. Although even legitimate discharge decisions sometimes result in litigation, the hospital’s position was quickly vindicated by the lower court’s summary judgment decision, a decision affirmed on appeal. The Farr analysis illustrates the steps your company should pursue before acting precipitously to terminate your male employee. (The decision also illustrates one part of the hospital’s investigation that should be avoided, i.e., destroying the hard drive.) Investigate the facts and then act accordingly. Doing so should minimize the likelihood of litigation by your male employee.

Finally, there are steps that you can take to reduce the likelihood that any of your female employees will sue you. Remove the computer during the investigation. Replace its hard drive before it is put back in service. And use the situation as a “teaching moment,” reminding your employees of their need to comply with both your sexual harassment policy and your electronic communications policy. If your company takes prompt and appropriate action to address the concerns brought to your attention, the chances that you will be sued by one of your female employees are not high. The chances that your company would be found liable, in the event a suit is brought, are even lower.

As noted above, one of our readers provided her reaction to this question. She wrote,
“Why would you want to take the risk by firing anyone, especially since you have absolutely no proof…only gender. You are opening yourself up to a gender discrimination lawsuit. I would suggest you gather everyone together who had access to this computer, give them all a reminder of your electronic systems usage policy (assuming you have one) have them all sign for it and indicate to the that a repeat occurrence will not be tolerated and you will be watching content from that, and all computers, going forward and that further inappropriate use will result in severe disciplinary action. I recently read an article about viewing of porn, and 1 in3 women are currently reviewing pornographic Websites of one kind or another. You should not just assume it is the man and risk ruining his reputation on a guess.”

Dorsey & Whitney

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