Reprinted with permission from FindLaw.com
The Seventh Circuit recently upheld the firing of a school teacher who briefly viewed pornographic images in violation of the school district's computer use policy, despite his argument that his firing really related to constitutionally protected critical speech.
The teacher here had been a biology instructor for the eleven years for the school district. He also served as a union president for the local education association.
The moral of Zellner v. Herrick is that employers, whether educational institutions or other entities, should be clear in their written policies about specific computer use that they allow and prohibit.
By the same token, employees should follow those policies or risk discipline, termination, and other potentially adverse consequences.
On one occasion, while at school preparing a lesson plan, he deactivated the safe search filter and using Google image search he typed in the word "blonde." As a result, 20 pornographic thumbnail images and links to more images were provided to him.
The teacher also viewed the next page of results and then clicked a link from a site that advertised more such images, and another 20 thumbnail images were displayed. The teacher had pornographic images on his screen for a total of 67 seconds – hardly more than one minute.
The teacher's computer had been monitored because he apparently had stated previously that his computer was acting up, and the school district for some reason had suspected that the teacher might have been viewing porn. When confronted, the teacher admitted to the conduct described above, and also that he had performed similar searches several times over the past few years.
The school board voted to fire the teacher and refused reinstatement after an arbitration. After some state court proceedings, the teacher filed an action in federal court, alleging violations of his constitutional rights. He asserted that his firing really had to do with his constitutionally protected union activities and critical speech in the union context relative to the school district, and that the porn viewing was just a pretext to get rid of him.
The federal trial judge granted summary judgment in favor of the school district. And the Seventh Circuit affirmed the trial court's ruling. The appellate court's analysis is relatively straightforward: "It is undisputed that the search violated the district's policy, that [the teacher] admitted that he performed the search, and that he knew he violated the policy. Accordingly, the school board had a legitimate, nondiscriminatory reason to terminate the [teacher's] employment."
There are lessons here. Employers must be clear and have their employees sign off on computer use policies that make plain what is allowed and what is not permitted in terms of their computer use in the workplace. And employees must endeavor to fully ascertain the proper scope of their computer activities at work and then act (and not act) accordingly.
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners
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