By Michelle Singletary
Washington Post Staff Writer
Tuesday, March 18, 1997; Page A1

The messages regularly travel between computer screens at workplaces across the country: Why beer is better than women. Ebonics 101. Top 10 reasons computers must be male.

For many employees e-mail has evolved into a casual electronic conversation complete with jokes and gossip – whether of the politically correct variety or what could be deemed, particularly in the eyes of someone of a different race or sex than the sender, as offensive.

Employees typically assume their messages are private and will be seen only by the recipient. But because messages are routinely saved by companies, if they end up in the hands of someone for whom they were not intended, it's often not very funny and ultimately could be used against the employee and the company in a bias lawsuit. It also creates a potentially tricky civil liberties issue for companies that don't want to monitor employees' e-mail, but don't want to get caught up in a lawsuit either.

In the past four months, three major U.S. corporations – R.R. Donnelley & Sons Co., Morgan Stanley & Co. and Citicorp's Citibank N.A. – have been sued by black employees alleging discrimination as a result of messages sent via e-mail. Lawyers and technology experts say they believe the suits are the beginning of a wave of litigation in which employees produce e-mail evidence of sex, race or age discrimination. Also, lawyers searching for ways to prove or disprove discrimination routinely are asking companies to retrieve e-mail from their computer systems.

"Employees have this expectation that e-mail is private, but it's not and they don't understand that they can leave a footprint," said Frank Connolly, a professor of computer science and information systems at American University. "The medium lulls you into a false sense of security that it probably shouldn't."

Electronic mail, or e-mail as it is commonly known, is being used by nearly 80 percent of organizations to communicate and share ideas and information, according to a survey released last year by the Society for Human Resource Management (SHRM). Estimates are that by the year 2000, about 40 million people in the United States will use e-mail, sending more than 60 billion messages annually.

While e-mail quickly has become a common workplace tool, only 36 percent of organizations that use it have written policies addressing its use and only 34 percent provide training on the proper and improper use of e-mail, according to the SHRM survey.

Legal and computer experts say e-mail use has added a troubling wrinkle to workplace discrimination. Such communication has replaced the kind of informal lunchroom conversations that might have taken place in the past. In fact, employees have become so comfortable with e-mail that they say things they never would write in a memo or utter out loud for fear of being overheard.

And, unlike spoken conversations, e-mail messages are toneless and lack context, and consequently could be extremely damaging to a company if used as evidence in court.

"It's one thing to have testimony in court as to an alleged inappropriate comment made a number of years ago vs. a document where jurors see it in black and white," said Stephen L. Sheinfeld, a New York attorney who heads the labor and employment department at Whitman Breed Abbott & Morgan.

Lawyers say workers who electronically send what might be viewed as racist jokes could be creating what legally is considered a hostile work environment – opening themselves and their companies up to discrimination lawsuits.

Companies, which often don't have policies on e-mail use and etiquette, can be liable for their employees' discriminatory actions, experts say, because legally e-mail sent from work is treated like any official record, such as a memo written on company letterhead.

"If an executive says something in an e-mail, it's as if he sent it through a memo," according to Jeffrey Neuberger, partner in the New York law firm of Brown, Raysman & Millstein, Felder & Steiner.

As yet there isn't much case law on this issue. But plaintiffs' attorneys could show employees were harmed emotionally by being exposed to racist or sexist e-mail messages. Additionally, e-mail messages also could be used against companies with spotty or bad histories for hiring and promoting minorities and women.

"Claimants are now searching the e-mail systems looking for smoking guns and because e-mail is unerasable, it can come back to haunt an employer," Sheinfeld said.

"There is some really bad, bad stuff being sent," said Lauren Reiter Brody, a partner and co-chair of the employment practices group at Rosenman & Colin in New York.

One of the companies recently sued, R.R. Donnelley & Sons, a Chicago printer, is battling a racial discrimination lawsuit based in part on 165 racial, ethnic and sexual jokes allegedly passed through its e-mail system.

Morgan Stanley also has been sued over allegations that racist jokes were passed between co-workers through the company's e-mail system. And, last month, Citicorp's Citibank N.A. was sued in a class action in which two black employees allege that white supervisors and managers exchanged racist electronic mail messages.

In the Citibank case, the plaintiffs alleged that because of the electronic mail, they were subject to a "pervasively abusive racially hostile work environment."

In all three cases, the companies denied wrongdoing and stated they had taken measures to discipline employees who used the company's e-mail system inappropriately.

In the Citibank and Morgan Stanley cases, the lawsuits allege that white managers circulated a list of words that were used in sentences designed to poke fun at the use of Ebonics, sometimes referred to as black English.

In one example, submitted as part of the Citibank case, the word "disappointment" is capitalized and followed by the sentence: "My parole officer tel me if I miss disappointment they gonna send me back to da big house."

"This kind of joke without a doubt has no place in the workplace," said Stephen T. Mitchell, a Manhattan lawyer representing the two Citibank employees who filed suit. "You have a situation that people that have the power to promote and the power to terminate are ridiculing people that don't have that power."

Mitchell said he has been contacted by more than a dozen other Citibank employees who want to join the lawsuit, including several from Maryland.

In 1995, Chevron Corp. agreed to pay four women a total of $2.2 million in settling a sexual harassment suit after the plaintiffs produced, among other evidence, e-mail containing sexist jokes about "why beer is better than women."

E-mail humor reaches across gender, racial and ethnic lines. A recent joke being circulated on the "Top 10 reasons computers must be male," for example, contained as No. 10, "They have a lot of data but are still clueless."

Ultimately, the heightened concern about the liability generated by e-mail messages will cause more employers to begin monitoring the electronic mail sent and received by their employees, legal experts predict.

"I'm getting a lot of inquiries about e-mail monitoring," said D. Michael Underhill, a partner with Morgan, Lewis & Bockius, a District-based law firm.

Privacy advocates, however, caution employers not to overreact in responding to possible misuse of e-mail, saying that could cause other problems to develop.

"Employers shouldn't monitor e-mail unless they have strong reason to think someone is abusing it," said Evan Hendricks, editor of the Privacy Times.

For most companies there is plenty of e-mail hanging around on backup computer systems. Depending on the archival system at a company, e-mail from as far back as 10 years ago could be retrieved, according to Jim Isaak, director of information infrastructure standardization at Digital Equipment Corp.

Isaak said even e-mail that is deleted can be retrieved.

For example, hundreds of senior White House staff during the 1980s thought they had deleted their e-mail messages. But the messages survived on backup computer tapes and were preserved, including damaging communications sent by Iran-contra figures Oliver North and John Poindexter.

"Its a classic case of people not understanding the underlying technology," Isaak said.

Legal experts recommend that workplaces have some form of monitoring e-mail and disclose this to employees. Some experts even suggest that companies routinely dispose of e-mail messages from backup computer systems the way they would other sensitive documents.

They also say companies should develop immediately a written policy for e-mail and provide training on its proper use. Most importantly, such policies should prohibit the use of offensive language or jokes about race or sex, they said.

Experts also caution employees of the same race and sex against sending one another off-color jokes.

Patricia L. Morris, dean of the School of Education and Urban Studies at Morgan State University, said off-color racial or sexual jokes reinforce stereotypes. This is especially true for black workers who might be passing along jokes to one another about Ebonics, for example, at companies where African Americans are still striving to be paid and promoted on the same basis as whites.

"We shouldn't accept it from whites and we shouldn't tolerate it at all from each other," Morris said.