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The X-Files

Viewing objectionable material on the Internet spells trouble for employees and their companies

Dear Nan,
My boss is an otherwise great guy, but I accidentally discovered the other day that he’s been downloading adult entertainment files off the Internet and storing them on his computer. His computer is in his office, and no one else normally has access to it. I would never have known, but he called me from a client’s office and told me to look something up for him. He has hot links to some very hot stuff! I’m no prude, but this bothers me a lot. Does garbage like this have any place in a professional work environment? Whatever he does with these dirty pictures is his business, but should he be doing it on company time with company equipment? He is otherwise appropriate in his dealings with me and the rest of the staff. Maybe this is his private business and I should just ignore it. Do I have a dilemma between my loyalty to him as my boss and my company’s best interests? He doesn’t know I know, and I shudder to think what would happen if anyone else found out about these graphic files. What should I do, if anything?

The writer definitely has a dilemma. Respondents to this problem are equally divided between those in favor of taking action vs. doing nothing. Generally, respondents who said they would take action said they would do so to protect the company. Many cited the “Ethical Priority Compass” from a previous Office Ethics column: Take care of yourself, your company, and your supervisor, in that order. Chief worries among respondents are the threat of potential sexual harassment lawsuits and the misuse of company resources – the company’s computer, Internet access account, and the manager’s time. Those who said they would do nothing offer reasons that range from “it’s none of my business” to “embarrassing your boss will cause hard feelings and damage your relationship.”

In the old days, pornography at work didn’t get people fired and “the Net” was what you batted a tennis ball across. Welcome to the cyber office. The technology is new, but the problem with pornography remains the same: It’s still offensive, still demeaning, still invading the office space, and still protected by the Constitution. Internet experts estimate that 10 percent of all Web sites are pornographic in nature, meaning literally millions of smutty images are only a few mouse clicks away.

Briar Patch of Legal Issues

A discussion of this dilemma requires tip-toeing through a briar patch of thorny constitutional issues that have been debated for more than 40 years. It’s beyond the scope of this column to define pornography, define obscenity, and draw the line between the rights of free expression and criminalizing pornography.

Pornography in the U.S. is viewed through the lens of the First Amendment’s free speech clause. The U.S. Supreme Court has never directly addressed pornography’s harm to women (though it has effectively equated child pornography with child abuse), so the 14th Amendment’s equal protection clause is largely irrelevant in this context. In the United States, the right to free expression is viewed as more important than women’s rights to equality. By contrast, the Canadian Supreme Court acknowledges the serious harm to women caused by pornography, so gender equality trumps the right to free expression. This means that in Canada, a winning argument can be made that reasonable limits can be imposed on free expression to protect or attain gender equity.

While U.S. society at large views pornography as benign, this attitude does not extend into the office. A pocket of protection from the harms of pornography in the workplace was created by Tile VII of the Civil Rights act of 1964. Pornography has been judged to be evidence of an “intimidating, hostile, or offensive working environment,” and therefore discriminatory, although it has not been found to be the cause of discrimination. According to the courts, a policy that allows pornographic material to be displayed contradicts the spirit of Title VII – the creation of a workplace free of discrimination, where women are afforded equal opportunity to pursue a career. Therefore, the presence of pornography is arguably a discriminatory barrier to women becoming credible coworkers.

To Confront or Leave Alone

“Using the office for access to ‘adult entertainment’ is what 99 percent of the business world deems inappropriate use of the company’s equipment and Internet access. He could be putting himself at risk for termination,” writes Corleen Boros CPS, an administrative assistant at Hewlett-Packard in Corvallis, Oregon.

She’s absolutely right when she says the manager risks termination. Because pornography has been found to be evidence of sexual harassment, anyone who indulges in it at work is playing a high-stakes game of legal liability with the company’s money. “Garbage like this does not belong in the workplace,” says Victoria Probanz at Black Hawk College in Quad Cities, Illinois.

Half of all respondents voiced a version of the “leave it alone, it’s none of my business” response. “I think it is nobody’s business but his,” writes a student in Illinois. “Why should it bother you what your boss does on his computer or on company time? Obviously, he is still holding his position and it isn’t interfering with your work or how he treats you. If the company finds out about it, let them deal with it.” And Laura Hernandez in Silvis, Illinois, says, “Since your manager didn’t show this material to you, it is not sexual harassment.” Tonica Granell, office coordinator in Rock Island, Illinois, adds, “I believe he thinks there’s nothing wrong with what he’s doing. You really don’t know how long [the objectionable files] have been there. Wherever you draw the line, it is in his office.”

Interference with Job Performance

But pornography costs the company money in other ways besides lawsuits, others say. This kind of objectionable material is commonly banned from the workplace because it unreasonably interferes with an individual’s job performance.

More than 80 percent of managers surveyed by pollsters for the computer industry regularly report they are “very concerned” or “somewhat concerned” about a loss of productivity from non-business Internet surfing.

Tapping into the Internet is something like letting a genie out of a bottle; it has the potential to affect the entire office. Consider this true story: A curious manager decided to go online and search on the keyword “sex” just to see what all the fuss was about. He looked around a little bit, saw that there were thousands of sites that would be happy to take his $39.95 to titillate his libido, and logged off believing that was the end of his quick and harmless peek into the cyber porn shop.

Wrong. Within 24 hours, he received dozens of unsolicited e-mail messages trying to lure him into other XXX sites. Even though he had not provided them with his e-mail address, the pornographers were able to track him down through a neat bit of reverse engineering. Some of the messages were embarrassingly graphic in the subject description line. Others were purposely clever or obscure, making it necessary for him to open the e-mail message to be sure what it was. Everyone in the office got dragged into the incident because they shared the same e-mail box. The extra volume of e-mail was irritating, embarrassing, and burdensome. He is sure his staff’s productivity suffered, and he feels his reputation was compromised, despite his protestations of innocence. This embarrassing situation went on for several more weeks until he and his secretary wrote each sender a stern warning to remove them from their mailing lists.

The Truth is Out There

Can we agree that porn online costs something more than nothing and that no company is willing to knowingly pay for it? Can we further agree that porn has no redeeming value to the business or its employees? Can we agree that the potential costs – tangible and intangible – to the company and its female employees are great enough to justify some limits of the rights of free expression? Yes.

But what can, or should, you do? Some people say stay out of it. “A person’s private life is their business,” writes Sylvia Garner, administrative assistant at Information Resources in Chicago. “As long as he doesn’t mistreat you or other staff members, you should not form a negative opinion of him because of what you saw on his computer. We’ve all done things on company time that we should not have. Forget about it.” Denise Beckman in Hampton, Illinois, agrees: “I would remain loyal to him as long as these pictures aren’t causing frisky activity at work with me or other women. I feel this is nothing more than a Playboy magazine on the Internet.”

Among those who wanted to confront the manager, almost everyone suggested discussing the existence of the sleazy computer files with the manager as a safe first step. Was he aware that these files were easily accessed? Is he aware of how the presence of these files is likely to be viewed by others? Is he willing to delete the files and discontinue this practice at work?

Hopefully, you can open a conversation with your boss in which you can remind him of your company’s policies in this regard and the potential vulnerability of a lawsuit. A positive discussion of this kind should be well received by your boss once he realizes you are only trying to help him.

Besides protecting yourself, your goals are to look out for your company’s interest and, wherever possible, protect your company from legal or financial harm. You and your boss share the same goal to improve productivity and profitability. Also, if possible, you want to maintain a good working relationship with your boss. Making him feel angry, shameful, or vulnerable to a lawsuit is counterproductive to this goal.

No matter what, you have to protect yourself from any kind of legal or financial harm. Although through no fault of your own, you, also have observed this material on the Internet. And, if asked, you cannot deny having done so.

Step 1:

Before you talk to your manager, find out your company’s policy. Employers vary widely in their policies and practices on this subject. Some allow reasonable personal use within certain guidelines but block employee access to sex sites with “filters.” Others leave it up to the individual’s discretions. All employers, however, discourage employees from downloading objectionable material to their company computers.

Step 2:

It would be hard for this conversation to be anything but embarrassing for the manager. In this particular situation, your boss has clearly used bad judgment. It is not your job, however, to be judgmental of his behavior. A confrontational manner on your part will only lead to your boss’ defensive response. “Speak with him privately at first,” suggests Victoria Pobanz in Quad Cities, Illinois. “He needs to know that you found the material offensive and if anyone else in the workplace located the files, they would most likely feel the same way. If he deals with your comments in a positive manner, let it go. If he is defensive [and resists compliance], someone of high authority needs to be told of the situation.”

You are actually walking into an ethical fee zone, an uncharted territory. An ethical free zone is an aspect of a relationship where there are yet no ethical rules. Until a situation arises, you may not even be aware of your different behavior standards. You will undoubtedly end up negotiating a one-of-a-kind, mutual-tolerance-and-respect understanding with your boss.

Step 3:

Be sure to document the conversation, whatever the outcome, so you are protected no matter what comes up in the future. Immediately summarize or recap verbatim everything you can remember about what was said and who said it, then write the date and time on the page and store it in a secure place outside of the office.

“I believe this is a win-win situation,” Janice Socher CPS adds. “You reinforce your loyalty to your executive by confiding with him your concerns about the consequences he may sustain if discovered. He will appreciate your integrity and perhaps think differently about the files that he thought were perfectly harmless on his computer.

It may not work, so be prepared. Your boss may be too embarrassed and not even wish to begin the discussion with you. But at least you can take comfort in the fact that you tried to help him. Or, it may be too late. The company may already know and be preparing the termination papers. Increasingly, corporations are using software tools to track employees’ use of the Internet. If they want to, they can track every click you make. An anonymous respondent writes that her company has “a designated staff member assigned the responsibility of occasionally reviewing information that has been downloaded from the Internet.”

Critics may say employees have always performed occasional personal tasks on company time and with company equipment, and that such monitoring constitutes an invasive and offensive “Big Brother-like” lack of trust.

Step 4:

Be sure your company has thoughtful, relevant policies regarding Internet usage, including the consequences for violations. Most company handbooks have a blanket statement that: “Company assets must be used for authorized purposes only.” However, if a company wishes to be more lenient in their employees’ use of the Internet, perhaps this verbiage would be appropriate: “Employees may use the Internet for reasonable personal use as long as it is done so on personal time (lunch or after hours) and its use does not violate the company’s values and ethics.” To avoid any misunderstandings, there should also be some verbiage about it being forbidden to view sexually explicit Web sites because “reasonable use” can be subjective. The consequences for violating a “no Net sex” policy should be clearly spelled out and enforced evenhandedly.

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A past international president of IAAP, Nan DeMars CPS is an internationally recognized authority and seminar leader on office ethics. She is president of Executary Services in Minneapolis, MN, and author of You Want Me to do What? When, Where, and How to Draw the Line at Work (Simon & Schuster).

Contact Nan for more information about executary consulting services or seminars