Pornography in the salon

The existence of pornography in the workplace leaves employers open to allegations of sex discrimination. How should salons treat the subject? In a study conducted by Queen’s University in Belfast of 350 companies across the United States, the United Kingdom and Australia, one-third of workers admitted sending pornography to others. And, half of all workers said they had been exposed to sexually-explicit material by co-workers. With an increasing number of businesses granting employees unlimited access to the internet, these figures reflect a disturbing trend, against which employers need to take action.The recent case of Moonsar clearly underlines the fact that the existence of any pornography in the workplace can form the basis of successful sex discrimination claims by company workers. Mrs Moonsar worked as a data entry clerk for a courier company. On three separate occasions, male members of staff in the same room as Mrs Moonsar downloaded pornographic images from the internet. Mrs Moonsar was aware this was happening, although she did not actually see the images. Mrs Moonsar did not complain about the behaviour because she said she wanted to “keep her head down”, but at the employment tribunal hearing she gave evidence that she had found it offensive. The employment tribunal held that there was no sex discrimination because the conduct Mrs Moonsar complained of was not directed at her and that, by implication, she did not really object because she did not complain about the issue of pornography until after she was dismissed. The Employment Appeals Tribunal (EAT) overturned this decision, ruling that, viewed objectively, the behaviour of the male members of staff had the potential effect of causing an affront to a female employee working in the close environment of the company’s office and therefore could be regarded as degrading or offensive to an employee as a woman. It also accepted that Mrs Moonsar had been subject to a detriment because of the nature of the male employees’ behaviour and because there was evidence that she found the behaviour unacceptable. The EAT was not influenced by the fact that she did not complain because the behaviour in question was so obviously offensive in nature.

Establishing a Case

Having established that there was a case to answer, the burden shifted to the employer to show the conduct was not discriminatory, for instance because she had enjoyed it or had been a willing party to what was going on. However, the employer had not offered any evidence on this point, so the EAT substituted a finding of sex discrimination in favour of Mrs Moonsar. Previous case law on sex discrimination and sexual harassment has held that even where treatment subjects an employee to a detriment and is of a sexual nature, that treatment may not amount to sex discrimination if the same treatment were accorded to a member of the opposite sex, for example, where sexual banter is directed equally at both men and women within a group. Moonsar is an extremely important case for employers, however, because it makes it clear that downloading and sharing pornography is a type of “obvious behaviour”, which is likely to amount to sex discrimination regardless of whether the employee complains about it or not. Unless an employer can prove the absence of discrimination, (ie by showing that the employee did not suffer any detriment once a complaint of this kind has been made), it is likely to be found liable for sex discrimination.

Reasonable Steps Defence

Employers can be held responsible for sexual harassment conducted by their employees even when the behaviour takes place without their authority or knowledge, and employers will only have a defence if they can prove that they have taken all reasonably practicable steps to prevent it. In order to determine whether an employer may rely on this defence, known as the “reasonable steps defence”, a tribunal will usually first identify whether the employer took any steps to prevent the employee from doing the act or acts complained of; and secondly, consider whether there were any further steps they could have taken that were reasonably practicable. In light of this, examples of preventative steps employers should consider taking in respect of the downloading and viewing of pornography in the workplace are: 1. Introducing a carefully drafted internet/email policy, clearly outlining the obligations and rights of the employee in relation to internet and email usage, and the disciplinary action that will be invoked in the event of breach 2. Installing a web filtering system restricting access to certain websites and preventing unauthorised emails 3. Undertaking staff training on internet/email use and sexual harassment 4. Implementing a programme of auditing and monitoring staff emails and files. In short, the message Moonsar sends to employers could not be clearer: if you want to avoid a claim for sex discrimination, adopt a zero tolerance policy to pornography in the workplace.