On Wed, 20 Sep 2000, Noonan, Wesley wrote:
> No, there are numerous parts of the country (US) where watching porn is
> illegal. Also, it is considered sexual harassment in the US anytime someone
I'm pretty sure that viewing porn is ok everywhere, it's the distribution
of "obscene material" that has jurisdictional challenges in some parts of
the country (In other words, some porn can be seen everywhere, some
nowhere and a lot depends on where you are.) The US porn industry has
faced and won quite a few 1st A. lawsuits over the years. Note that
"obscene material" is normally judged by "community standards" which is
why the variance is high geographically.
> feels like they were harassed. Here is a real (first hand) example. We had a
> student (MCSE classes at a CTEC) who downloaded a picture of "Buffy the
> Vampire Slayer" (don't remember her name) and set it as his wallpaper. She
> was fully clothed, but the scene was considered "provocative" by a female
> student. She complained and the male student was given a refund and expelled
> from the classes. This was done under threat of a law suit for sexual
> harassment due to the school not "providing an environment that was
> conducive to learning"
Generally "threat of lawsuit" is enough for some people to cave. I worked
for a large media firm that had something like 130 law firms on retainer,
and the test was more about "likely to win" than "likely to get sued."
That changes your view of the law substantially IMO.
Harassment requires a first complaint, inactivity and then a second
complaint (or repetition of or similar behaviour) as I understand the law
(I'm not a lawyer and don't play one on the Net- check with counsel and
dont' harass anyone anway.)
> while I am in, I have a qestion for those who "know the laws". suppose an
> employee
> visits prohibited material. Isn't it sufficient to keep the logs and show
> them to the police
> in case of suit? let's forget about the fact that logs aren't ecure and
> other stuff, but isn't
> this a way to make the employee responsible instead of the company?
> If this is true, then it somewhat solves the legal part of the question.
>
> No. Not in the US. Employers are wholly responsible for their employees
> actions. You show those logs to the authorities, without having taken any
> action to prevent/punish the behavior and the plaintiff's will thank you for
> the evidence they needed to sue for millions of dollars. There are a number
> of civil cases that prove precedence for this kind of action. IOW, no one
> sues the employee, they sue the employer and it is not an adequate defense
> for the employer to say "the employee did it". The employer has a legal
> obligation to prevent/deter such activities.
That's civil cases, criminal cases are the opposite. Law enforcement
would generally (at least I think they would) prefer that the employer
contact them while the activity isn't known to have been discovered. It
makes their job much easier to get someone "in the act" than after the
fact.
It actually *is* a valid defense in some instances to have a "bad apple
defense" (The employee did it.) Those cases require policy, documentation
and action. In most cases, contacting the authorities would count as a
positive action, and I've yet to see a case where a company has been
successfully sued where that has happend. All the precedents I've read
have been about the company ignoring the complaint or not correcting the
environment after a complaint. [The Norfolk (?) Shipyard case being the
big test case I recall reading but can't seem to locate again- but the
opinion was well written.]
The whole reason for policies is to be able to use the bad apple defense
in court and win. "The employee acted against policy and when management
was made aware of it we (a) stopped it, (b) counseled them, (c) terminated
them, (d) contacted <$authority> and (all cases) issued a
statement/training to all employees." Should hold up for any case in the
US. Ask your lawyer though- this is just my understanding after a few HR
classes and some rather serious lawyer meetings during policy and/or
investigation phases of work for a particular employer.
Interested parties might want to persue further with something like
the Cyberia list where more savvy people hang out and discuss Net/Computer
law issues.
Paul
-----------------------------------------------------------------------------
Paul D. Robertson "My statements in this message are personal opinions
[EMAIL PROTECTED] which may have no basis whatsoever in fact."
-
[To unsubscribe, send mail to [EMAIL PROTECTED] with
"unsubscribe firewalls" in the body of the message.]
