Michigan Journal of Gender and Law

Limiting the Affirmative Defense in the Digital Workplace

2012

By Daniel B. Garrie

From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment. Such sexual harassment occurs through unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. To date, courts remain silent on this issue. Should this type of sexual harassment be treated differently from physical sexual harassment? The surprising answer is yes. This Article suggests a new judicial framework for addressing sexual harassment perpetrated through digital communications. This framework accounts for the real-world technology in place in the digital workplace and the legal framework that courts have constructed in connection with affirmative defense to sexual harassment. The fundamental difference between digital and physical sexual harassment is the employer’s ability to monitor and block offensive digital communications and thus prevent digital sexual harassment. This possibility of prevention is the underlying reason for treating the two forms of harassment differently and for modifying the existing affirmative defense. This Article proposes that when an employer fails to use available technology to prevent known digital sexual harassment issues, the affirmative defense should be modified or unavailable. Adopting this approach would compel employers to use monitoring and blocking technology as a way to eliminate digital sexual harassment in the workplace.

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