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Online harassment can occur in a wide variety of contexts, ranging from e-mail to chat rooms. Usenet groups, mailing lists, and home pages of web sites have also been known to contain sexually explicit communication that may include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
Over the past few years, express prohibitions have been set forth that attempt to address various components of this problem. The embattled Communications Decency Act of 1996, for example, contains several provisions forbidding online harassment. Section 502 provides criminal penalties for persons who initiate the transmission of "any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person," and for those who "repeatedly initiate...communication with a telecommunications device,...solely to harass any person...who receives the communication. The Act also sets forth criminal penalties for those who "knowingly permit...telecommunications facilit[ies] under...[their]... control to be used" in this manner "with the intent that it be used for such activity." See 47 U.S.C. Section 223.
In addition, several major commercial online services and Internet access providers have developed written policies prohibiting similar behavior. America Online's prohibitions are particularly noteworthy in this regard. Members are warned that their subscriptions may be terminated if they "transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, racially, ethnically, or otherwise objectionable content," and are told that they "may not use the service to harass..." See David Cay Johnston, The Fine Print in Cyberspace, N.Y. Times, August 11, 1996.
One of the most compelling questions facing cyberlaw attorneys in this area is whether the elaborate and well-settled Title VII framework -- prohibiting sexual harassment in the workplace -- will emerge as a "federal common law" with potential applicability throughout cyberspace. Sexual harassment is a confusing area for many people, and arguably the highly developed Title VII principles can help Netizens clarify the boundaries of acceptable behavior under the law.
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer...to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. Section 2000e-2 (a) (1). In 1980, the E.E.O.C. issued guidelines specifying that sexual harassment -- either quid pro quo or hostile environment -- is a form of sex discrimination prohibited by Title VII.
Quid pro quo harassment is the more traditional form, and typically comprises the trading of sexual favors for some sort of advancement. Hostile environment harassment is a more recent development, and indeed it is this second category that has generated such great controversy as a growing number of employers have been found liable for failing to take prompt and remedial action to end known activity in this regard.
The hostile environment framework was recognized by the U.S. Supreme Court ten years ago in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In an opinion delivered by then Justice Rehnquist, the Vinson Court explicitly adopted the E.E.O.C.'s interpretation of Title VII, and held that the E.E.O.C.'s definition of "hostile environment" was indeed appropriate in an employment setting. See 29 CFR Section 1604.11 (a). Seven years later, in Harris v. Forklift Systems, 510 U.S. 17 (1993), the Court refined this definition by making it possible for a victim to prevail even if he or she had not suffered severe psychological damage.
As Justice O'Connor explained in Forklift Systems, "[W]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,'...that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment,' Title VII is violated.
The test is both objective and subjective. The conduct must be "severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive." In addition, the victim must "subjectively perceive the environment to be abusive," and the conduct must have "actually altered the conditions of the victim's employment."
Finally, the Court explained that "whether an environment is 'hostile' or 'abusive' can be determined by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required."
While some believe that the Title VII framework should be limited to the workplace, its basic principles have already been extended into the wide- ranging arena of education. The E.E.O.C. guidelines adopted by the Vinson Court have been codified in new education code provisions addressing K-12 student behavior (see, e.g., Cal. Educ. Code Section 212.5), and have been the basis of sexual harassment policies set forth over the past 10-15 years by major colleges and universities.
In addition, the K-12 education community has recently been hit with a literal explosion of Title IX sexual harassment lawsuits, and several federal courts have been willing to apply Title VII workplace harassment principles in this context. See, e.g., Doe v. Petaluma School Dist., 830 F. Supp. 1560 (D.C. Cal. 1993); Davis v. Monroe County Bd. of Ed., 74 F. 3d 1186 (11th Cir. 1996).
Title IX of the Education Amendments of 1972 to the Civil Rights Act of 1964 prohibits discrimination "on the basis of sex" in "any education program or activity" receiving federal funds. See 20 U.S.C. Section 1681 (a). The Eleventh Circuit in Davis was very comfortable finding the Title VII hostile environment framework directly applicable under Title IX in a school setting. It recognized that "a student should have the same protection in school that an employee has in the workplace," and found many parallels between an education environment and an employment setting.
It can in fact be argued that this same reasoning should apply to extend these "hostile environment" principles to cyberspace. Like school and like the workplace, cyberspace often brings together a good number of people at one time in a setting where -- for a variety of reasons -- it may not be so easy to walk away. And increasingly, for many users, cyberspace is not simply a frivolous playing field but an environment that is just as important as an educational institution or a workplace. Indeed, for a large percentage of online users, cyberspace already is an integral part of their education or a necessary component of their job.
The Davis court's words are particularly appicable in this regard: "[A] non-discriminatory environment is essential to maximum intellectual growth, [and] a sexually abusive environment inhibits, if not prevents, [a person] from developing her full intellectual potential." As more and more of the online world emerges as an inseparable part of the workplace and the educational environment, sexual harassment is not something that can easily be ignored.
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