A Word to the Wise

Courts have repeatedly acknowledged that Title VII was not intended to serve as an arbiter of good taste. For example, Justice Scalia, on behalf of a unanimous court in Oncale v.Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998), rejected the notion that Title VII imposed a 'general civility code for the American workplace.' Yet on occasion employers will severely punish, even terminate, employees accused of inappropriate behavior that is more boorish than illegal. Have employers become too sensitive to the issue, meting out punishment in disproportionate doses in EEO cases? If so, is this an over-reaction by a liability-sensitive employer community or prudent human resources policy, or something else? The recent case of Strycharz v. Verizon, 2002 WL 31856820 (S.D.N.Y. 12/19/02) (Lynch, D.J.), is instructive in this regard.

In Strycharz, plaintiff sent a joke with sexual content from his office e-mail to current and former colleagues at Verizon. One of the recipients of the e-mail complained, and Corporate Security uncovered five other offensive e-mails stored in Strycharz's computer that were either sent from or received at that work station. When confronted, Strycharz admitted that he had distributed the off-color e-mails, acknowledged that this misuse of the e-mail was inexcusable, and apologized. Strycharz was terminated along with a second employee, and he sued, alleging age discrimination and violations of ERISA and RICO.