One of the problems with e-mail: A message easily can be misinterpreted and taken out of context. And when it happens to a manager, the repercussions can be serious.

In one recent case, a manager’s comments about a prospective employee got his employer wrapped up in a costly court battle. Here’s what happened:

A pregnant woman was turned down for a job as a casting assistant for a movie production company.

She sued, claiming she was rejected because of her pregnancy. The employer claimed she just wasn’t the most qualified candidate.

Who won the case?

The employer’s defense was sunk by one key piece of evidence: an e-mail from the hiring manager to another employee. In the message, he expressed concern that the applicant would not be able to handle the stress and long hours of the job because she was expecting.

Regardless of the qualifications of the person who was hired, the manager’s e-mail made it tough to ignore his assumptions about the pregnant candidate, and the employer couldn’t prove his decision was unbiased.

The company ended up paying the woman a $75,000 settlement.

Can’t be erased

All managers need to understand the dangers of discussing employment decisions over e-mail, especially those centering on a sensitive topic like in the case above.

E-mails are permanent records. Any relevant messages will always be brought into court in the event an employee or job applicant sues — and they’re often read out of context or interpreted in ways that hurt the employer’s case.

The solution: Train managers to watch what they write and know which conversations to hold in person.

Cite: EEOC v. Crick Pictures, et al.

Read the facts of this real-life case and decide: Who won?

The facts:

The employee, a native of India, was in the country on an H1B visa. While working in the company’s IT department, he never got along well with his co-workers. His manager noted in his first performance review that his technical skills were excellent, but he needed to improve his relationships with other people in the company.

Employees complained that he was rude, abusive and sent them condescending e-mails. Also, he ignored the manager’s requests that he train another staffer to serve as his backup. The company fired him, citing his poor people skills. The employee sued for national origin discrimination. He said he didn’t get along with other employees because they were biased against him, claiming he was subjected to insults about his nationality.

The employer said:

The employee was fired solely because of his behavior and attitude problems — not his status as a foreigner. If any of his co-workers had biased attitudes toward him, the employee failed to bring it to HR’s attention.

Who won the case?

Answer: The employer.

Why: The employee claimed he was subjected to derogatory comments about his national origin — but he couldn’t prove that ever occurred, and he never made a complaint about bias to HR or his boss.

Without any evidence to the contrary, the court ruled that the company legitimately fired the employee based on the way he treated his colleagues.

Cite: Andonissamy v. Hewlett-Packard Co.

These days, recruiters and HR pros don’t think twice about posting open jobs online. But do online recruiting methods unfairly exclude minority candidates?

The answer is yes, according to a recent study by the JobApp Network, a recruitment outsourcing firm.

JobApp accepts applications both online and over the phone. To study the effects on different groups, the company looked at the demographics of job seekers who applied using each method.

The results:

• More than 40% of the telephone applications came from minorities, and
• minorities made up just 20% of the online applicants.

The upshot: If companies only take online applications, they may be excluding minorities from the selection process.

It’s not a new theory — given the difference in Internet access among racial and ethnic groups, the notion that an online-only hiring process will adversely impact some groups has been discussed before.

But this study is the first to support the theory with statistics.

HR’s big question: Is it illegal?

In 2005, the EEOC issued an informal discussion letter warning about accepting applications exclusively via the Internet.

The law prohibits not just intentional bias, but also the use of “neutral selection criteria” that exclude a disproportionate number of people in a protected class.

Online recruiting methods may fall under that category if people over the age of 40, minorities or disabled job seekers have limited access to the job.

So far, the courts haven’t tested the issue, and informal discussion letter’s aren’t meant to give the EEOC’s official position. In other words, it’s not clear whether employers are at risk of being sued when they only advertise jobs and accept resumes through the Internet.

Either way, companies looking to attract a diverse workforce will want to consider recruiting employees through a variety of methods.

You can the EEOC letter here. The full study from JobApp is available here.

As much as e-mail has helped corporate communication, it’s also opened the doors to new legal risks for employers. Here are some common mistakes both managers and Human Resources pros make that can get their companies in serious trouble.

One problem with e-mail is that it creates permanent electronic evidence that can be used in harassment, bias and other lawsuits.

The role of e-mail as evidence in litigation has been increasing since the federal courts’ new “e-discovery” rules went into effect in December of 2006. About 24% of companies have had e-mail subpoenaed, according to a recent survey by the American Management Association.

What’s more, 15% have fought cases directly triggered by something an employee or manager said in an e-mail.

Here are some of the common mistakes that can lead to those lawsuits, courtesy of attorney Mindy Chapman, who spoke at this year’s Society for Human Resources Management Annual Conference:

• Sending dirty forwards — This one’s a no-brainer for HR — but a full 60% of e-mail users admit to having sent adult content at work. And, as many companies have found out, that’s an easy way to end up in with a harassment suit.
• Using “smoking gun” phrases — In some court cases, e-mails have turned up with phrases like “Delete this e-mail” and “Should we get a legal review?” Managers should be reminded that e-mail can’t really ever be erased, and sensitive legal issues can wait for an in-person discussion.
• Complaining about protected activities — Managers can sometimes make casual comments that look like evidence of retaliation (i.e., “I can’t believe she’s taking leave again.”). If the employee in question is ever disciplined or fired for a legitimate reason, that evidence will be hard to argue against.
• Not printing out key messages — E-mail evidence can protect employers, too. Printing out important e-mails and adding to them to personnel folders can help beef up your documentation. Also, sneaky employees might be able doctor messages to make it look like you or a manager said something you didn’t. Having your own hard copy of the real e-mail can offer extra protection.
• Forwarding an attorney’s advice — E-mails between you and your company’s lawyer are covered by the attorney-client privilege — until they’re forwarded to other people. If you think someone else needs to see the message, ask the lawyer to send a copy from his or her own address.

What should HR pros do? Usually, those mistakes are the result of managers letting their guard down and saying things over e-mail they wouldn’t say elsewhere. But they should be reminded that every time they write an e-mail, they’re writing a permanent legal document.

More e-mail etiquette mistakes

Aside from messages that scream “Please sue me,” some e-mail goofs just cause major resentment or minor irritation. Some other mistakes managers should avoid:

• Giving negative feedback — About 17% of managers admit to using e-mail to avoid difficult conversations. Given how easily written messages can be misinterpreted, bosses need to know when to talk face-to-face with an employee.
• Sounding too urgent — What do most employees think when their boss sends an e-mail saying, “Come to my office ASAP?” Odds are, it’s that they’re in serious trouble. Managers should be more gentle when trying to get someone’s attention — or pick up the phone.
• Using sarcasm — It’s easy for a written message to sound much more insulting than the writer intended. Always read everything before it’s sent to see how it’ll sound to the recipient.
• Ignoring the trash can — No spam filters are alike, and all are fallible. The spam folder should be checked periodically to see if any important messages have been mis-categorized.

The latest Web site racking up hits at workplaces across the country: annoyingcoworker.com

Here’s how it works: Workers log on and post their rants on the site. They also have the option of sending the complaint to the offender through e-mail (the sender’s address is disguised).

Some of the highlights of what’s posted:

• “Hey, lookie lookie, you broke the photocopier AGAIN and just walked away like nothing happened!”
• “Stop whistling you freaking MORON!!!”
• “PLEASE PLEASE PLEASE go to the dentist!!”
• “If you are SO unhappy in your job then leave! No one wants you here anyway! All you do all day long is bitch about how you could find a better paying job some where else. Well you know what? No you can’t.”

Anonymous ranting could be harmless, but once people get e-mails about their own behavior, it could cause problems — especially if the messages contain anything that resembles harassment or discrimination. HR pros might want to keep an eye out for complaints about this sort of thing if it catches on.

A much-publicized discrimination lawsuit has been filed against the Secret Service. Most of the attention has centered around an noose allegedly being hung at a training facility to intimidate African-American employees.

But there’s some other evidence that spells bad news for the agency: e-mails containing racist jokes.

Ten e-mails have been submitted to the court as evidence in the case. They include jokes about interracial sex and insults and threats regarding prominent African-American figures like Jesse Jackson.

Be careful

Of course, companies need to warn managers about all forms of discriminatory and harassing language. As this case shows, that includes e-mail conversations. Often, e-mail is especially damaging because it creates a permanent record that can be used against the employer.

Lessons about e-mail can be added to regular harassment and discrimination training. Managers should be reminded not to put anything in an e-mail they wouldn’t say publicly – because you never know who’s going to end up reading it.