An employee has won the right to “discover” allegedly harassing e-mails her supervisor sent while they worked for a former employer.
Andrea Gogel sued Kia, alleging it failed to promote her because of her race and gender. She also claimed that Kia later retaliated against her for filing complaints. Although she didn’t directly sue her supervisor, Randy Jackson, she sought information about him through the court’s “discovery” rules, which provide for the exchange of evidence during litigation.
Gogel and Jackson had previously worked together at Toyota. Gogel subpoenaed Toyota for copies of e-mails sent by or forwarded to Jackson during a four-year period. She alleged the e-mails were “offensive, pornographic in nature or sexual in nature, and/or derogatory towards women.”
Jackson asked the court to disallow Gogel’s request for his Toyota e-mails, arguing that they were more than a decade old and pertained to his past employment at Toyota, not Gogel’s claims against Kia. In addition, he argued that the e-mails were irrelevant because they were sent to an attorney and therefore revealed nothing about his attitude toward female employees.
Finally, Jackson claimed that the e-mails were irrelevant to Gogel’s case because they allegedly involved sexual harassment, while her claims against Kia were related to a failure to promote and retaliation.
The court disagreed with Jackson’s arguments, finding they blurred the line between what a party to a lawsuit can ask to receive and review and what she might later be allowed to show to a jury. Gogel claimed the e-mails illustrated Jackson’s attitude toward women in the workplace, and his attitude allegedly influenced his decision to terminate her employment. Based on that argument, the court couldn’t “conclude that the requested documents [were] not reasonably calculated to lead to the discovery of admissible evidence.”
Addressing Jackson’s concerns about the “age, origin and context of [the] e[-]mails,” the court acknowledged that those factors “may very well affect their admissibility in later stages of the litigation.” However, it found that “they are not grounds to bar discovery of these documents altogether.” Jackson v. Gogel, Civ. Act. No. 15-35-DLB-JGW (E.D. Ky., May 29, 2015).
An employer should reasonably expect that its own records, and the conduct of its employees, will be reviewed and potentially used in a lawsuit filed against it by a current or former employee. It can adopt and enforce workplace policies that protect its workforce and its interests, including policies governing electronic communications. But this case gives new meaning to the warning that “e-mails last forever.”
Kia had no opportunity to regulate the conduct of its supervisor while he worked for another employer. This case demonstrates why every employment decision—from hiring to termination—needs to be carefully deliberated. Now, even the “past lives” of decision makers can be challenged and laid at the feet of your company. Covering all the relevant bases just got harder.