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By JOEL BERG, a college professor and freelance journalist based in York, Pa.

Curse all you want, but private employers like financial giant Goldman Sachs have the right to ban profanity from e-mails and text messages sent over company-owned equipment and networks, according to attorneys who specialize in employment law.

Goldman Sachs said in July it was banning profanity in electronic communications after an expletive-laced e-mail was repeatedly referred to at a Senate hearing into the firm's actions during the 2008 financial crisis. The ban applies to e-mails and text messages and will reportedly be enforced through monitoring software.

Cleaner e-mails are a laudable business goal, said Bruce Barry, a management professor in the Owen Graduate School of Management at Vanderbilt University in Nashville, Tenn.

"I'm all for civility in the workplace, and some people certainly view profanity as a breach of civility," said Barry, author of Speechless: The Erosion of Free Expression in the American Workplace. "Other people view it as a part of everyday language, and any employer who wants to try to regulate the content of communication has to make some tricky calls about how you want to define civility."

A vague definition of profanity can lead to potentially disparate treatment of offending employees, warned Bennet Alsher, an Atlanta-based partner at Ford & Harrison, a law firm that specializes in labor and employment law.

One supervisor might discipline an employee for language that another supervisor lets slide, Alsher said. If the employee being disciplined is a woman and the one escaping punishment is a man, or vice versa, there could be grounds for a discrimination claim.

"Rules have to be clear and reasonably specific," Alsher said. "Otherwise, they're open to too much subjectivity."

Even then, gray areas can crop up. Social-networking sites such as Facebook, LinkedIn and MySpace are one, attorneys said. Private, nonwork e-mail accounts are another.

Employers often claim a right to access employee e-mail accounts, but cases are pending in which employees are claiming a right to privacy when they are using personal e-mail on company computers, Alsher said.

Courts have come down on both sides of the issue. In one case, City of Ontario, Calif., v. Quon, the Supreme Court sided in June with a public-sector employer that discovered an employee had been sending private, sexually explicit text messages on city-owned devices during working hours.

In another case, New Jersey courts upheld a right to privacy for employees who disparaged their employer, a restaurant, on a password-protected MySpace page, Alsher said.

"I think there are all sorts of permutations and combinations of how this will play out," Alsher said.

International differences also can muddle an employer's intentions, said Nancy Delogu, a Washington, D.C.-based attorney who specializes in privacy issues for employment law firm Littler Mendelson. In the United States, "shag" generally refers to carpeting. In Great Britain, the word can refer to sexual intercourse.

"It's hard to imagine how they're not going to tie themselves up in knots if they try to rigorously do this," Delogu said.

Companies that flag profanity with monitoring software must comply with federal laws governing electronic surveillance, Delogu added, and they also should be up-front with employees.

"It's increasingly looking like the courts will allow employers to monitor their own systems," she said. "But it is important to communicate to workers what is going to happen, or you will find yourself in a difficult situation."

August 17, 2010

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