Feeling hostile towards AI’s adoption in the workplace? Wait until you get hit with a hostile environment claim involving AI. With AI becoming ubiquitous in the workplace, it is also at times being used to create fake videos, pictures and other digital media that make fun of co-workers or others in the workplace.
It is easy to use. It is a fun new tool that can be used to tease or joke with colleagues. But the line can also be easily crossed into creating material that would be a startling exhibit at a sexual harassment trial.
Real World Examples of AI Misuse
For example, in Indiana, the Lt. Governor’s office recently made headlines on reports that its employees created a deep-fake porn video of a State lawmaker’s wife and shared it around the office. Litigation has also been brought in other states related to deepfakes involving explicit content.
In Tennessee a broadcaster filed suit in federal court asserting sexual harassment and retaliation in connection with AI generated sexual images of her. In Washington state a police officer has brought a claim alleging co-workers created and shared an AI video mocking and outing his sexual orientation by showing him kissing another trooper.
State Law Developments
In addition, some states including Illinois have passed legislation allowing people victimized by deepfakes to sue civilly as well as seek criminal redress.
Title VII Still Applies
Regardless of whether laws exist specifically addressing deep-fakes, Title VII of the Civil Rights Act allows employees to bring hostile environment and harassment claims if such material is sexual or derogatory towards them for a protected characteristic such as racial stereotypes, disability or religion.
Employer Liability Considerations
Employers may face liability even if they did not participate in the creation or distribution of the AI deep-fakes. If the material significantly disrupts a victimized employee’s work environment, even if it was created off duty or disseminated after hours on social media, the employer could potentially be held responsible for its response to any complaints regarding the material. As with any harassment or hostile environmental action, employers should promptly investigate such complaints and take appropriate remedial action in response to meritorious claims.
Defamation Exposure
Further, because the content is “fake” it gives rise to potential defamation claims if not against the employer, then against the creator(s) and those who share it.
Policy and Training Considerations
Employers may want to update their policies including those on computer usage, off duty conduct and Anti-harassment policies to include limiting instructions on AI usage and dissemination. Management should be trained to be on the lookout for and be ready to handle such situations and take steps to preserve the evidence without unnecessarily distributing it.
Fort Wayne Law Firm
If your workplace is dealing with questions around AI use or employee conduct, Burt Blee can help you assess the situation and respond appropriately. Our team works directly with employers to address risks, review policies, and guide next steps. Contact us to start the conversation.
The information contained in this document is provided for general informational purposes only and does not constitute legal advice, and is not intended to, nor does it, create an attorney - client relationship. No reader should act or refrain from acting on the basis of this content without seeking advice from a qualified attorney licensed in the relevant jurisdiction. Reliance on any information herein is solely at your own risk. For guidance tailored to your specific circumstances, consult a qualified legal professional.
