By Howard LevittThe Internet enables people to watch more pornography than ever before, even at work. However, despite its rising popularity, it hasn't become any more acceptable to the mainstream and is often part of sexual harassment in the workplace.
Bad taste makes the day go by faster. --Andy Warhol
When business was slow, Greg Backman, a supervisor at Maritime Paper Products, would surf sex sites on his office computer up to three hours a day. The company never complained Backman was gratifying himself instead of performing his job. Neither did any of the people he supervised. On the contrary, the company was satisfied with the job he was doing.
It kept giving him raises and excellent reviews. Backman must have truly been talented to get his work done while surfing the Web for sex for hours a day. The company, like many employers, had an "Acceptable Use Policy" for work computers. Surfing for sex sites wasn't one of them. At the same time, it was aware of Backman's habit.
Several years earlier, he was warned to stop watching pornography at work or he would be fired but no one ever followed through on the warning. His great ratings continued. The company finally pulled the plug when a woman from the company's Manager of Information Services complained. Her job was to monitor everyone's computer use which required her to look at the images on Backman's computer, most of which were explicit images of young women engaged in sex acts. She told the company she found the images highly offensive. Maritime immediately fired Backman.
The court sided with the company. Justice McLellan of the New Brunswick Queens Bench stated, by displaying sexual images on his work computer, Backman was sexually harassing the woman in Information Services. In law, Maritime had a duty to protect her. It could not permit Backman to surf pornographic sites at work if it meant female co-workers would see it and be offended. Besides, Backman was warned and knew the risk he was running.
The company did the right thing by firing Backman because he placed the company at risk to be sued by the woman in Information Services for allowing him to sexually harass her. The lessons for employers are clear:
- Pornography in the workplace is not harmless entertainment. If an employee views pornography on a work computer, the employer may have cause for termination.
- If other employees are, in the course of their job, forced to see another employee's pornography collection, it can lead to claims of sexual harassment.
- Employers should make it clear to all employees that work computers cannot be used to view pornography or any material that might offend other employees. This protects the employer from claims it permitted sexual harassment and strengthens the employer's hand in firing employees that refuse to stop.
Howard Levitt, counsel to Lang Michener LLP, is an employment lawyer who practises in eight provinces and is author of several texts, including The Law of Dismissal for Human Resources Professionals, recently released.
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