Email is an essential part of the communication of nearly all workplaces.
However, it also has the potential to be used inappropriately by employees in ways that can offend, insult, harass or bully other staff or customers.
Sometimes this can be deliberate; in other cases, it can occur when a person fails to think through the consequences of sharing certain information or material with others.
Discrimination occurs when a person is treated less favourably than another person because of a particular personal attribute protected under anti-discrimination laws. Harassment or bullying that involves telling or sharing jokes may be discrimination in certain circumstances.
Example: An employee sent an Indian co-worker a link to a site that was derogatory towards Indian people. This could be racial discrimination.
Emails containing content or comments of a sexual nature can be sexual harassment if they are unwelcome sexual behaviour and, in the circumstances, a reasonable person would have anticipated the possibility that the person being harassed would feel offended, humiliated or intimidated.
Example: A co-worker made requests for sexual favours to another co-worker in emails. This could be sexual harassment.
Employers can be liable for acts of discrimination and harassment through emails that are sent in connection with a person’s employment. This is called ‘vicarious liability’.
To minimise their liability, employers need to demonstrate that they have taken all reasonable steps to prevent discrimination or harassment from occurring in their workplaces.
Employers can do this by educating staff about appropriate email use, providing staff with training on discrimination and harassment, and having a policy that addresses discrimination and harassment in email use.