Guarding Against Workplace Harassment In A Pandemic

By Braden Campbell
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Law360 (May 8, 2020, 4:05 PM EDT) -- The coronavirus pandemic may have elevated safety, staffing and other immediate concerns above harassment, but harassers haven't changed their ways and governments haven't freed businesses from their obligation to shield workers from mistreatment based on their sex, race and other protected characteristics.

Supervisors are still hitting on subordinates in workplaces that have remained open, and bigots are making their race-based gibes over email or Zoom where employers have moved operations online. This new normal has likewise changed how employers should probe complaints, according to attorneys who advise employers on harassment.

"Just because we're in kind of a different environment right now where a lot of people are under safer-at-home or stay-at-home orders doesn't mean they should avoid investigations," said Stephen Rotter, an attorney with management-side employment boutique The Workplace Counsel. "All the pieces are in place for employers to continue to do investigations."

Harassment Persists

Title VII of the Civil Rights Act and its state and city equivalents make businesses protect workers from harassment tied to certain protected traits. This harassment can take a number of forms, including unwanted sexual advances, jokes that denigrate members of a certain race or insulting comments toward members of a particular religion. And all of these remain a concern in the newly remote workplace.

Michelle Phillips, a Jackson Lewis PC principal who frequently investigates harassment complaints for clients, said she has seen harassment increasingly shift online over the last five to 10 years. That includes "sexting" — erotic text messaging — or other sexually- or racially-charged communications.

"I had a situation where there was [an instant messaging group] and one of the men was exposing not his private parts, but someone of another race's private parts," Phillips said. When she interviewed the sender while conducting sensitivity training, he said the message was an attempt to bond with his colleagues.

In-person, a worker may know not to make a racial joke or pass around nude pics, Phillips said. But the lines between what is and isn't OK tend to blur online, and they may look even blurrier as many workers report to work in pajamas and slippers.

Eric Meyer, an employment partner with cloud-based law firm FisherBroyles LLP, said he expects "the more egregious forms of sexual harassment are down," such as unwanted touching. But other forms of harassment may be up. For example, workers of Asian descent may be harassed over the coronavirus' reported Chinese origins, he said.

"If you have other things going on in the workplace because of COVID-19, it is possible that the complaint of discrimination might not take top priority," he said. "But it should nonetheless be a priority." 

Investigations Move Online

The virus has upended many facets of the workplace, but it has not changed employers' obligation to conduct a prompt and thorough investigation when a worker makes a harassment complaint.

"If employers have a good protocol already for doing a harassment investigation, I think they should follow that, even remotely, to the best of their ability," said Robin Shea, a Constangy Brooks Smith & Prophete LLP partner who advises employers on harassment.

That protocol typically starts with interviewing the complaining worker to get the full story, followed by speaking to the accused to get that side, Shea said. Then employers should interview any witnesses the main parties identified and compile any emails, texts or other relevant documents that may exist, before weighing the evidence and taking action.

That playbook mostly translates to the remote environment, although the shift presents some obstacles

Phillips said it can be more difficult to assess a worker's credibility remotely than it is in person, where she can carefully watch a witness' body language.

Conversely, if someone has a cultural background that predisposes them to avoid eye contact, that may be more easily mistaken as dishonesty over Zoom, she said. Phillips said she encountered this issue in one of three remote investigations she conducted in the last week.

"The person [I interviewed] would not look at me on the camera at all," she said. "It could be embarrassment.  It could be a denial. It could be a cultural thing."

Not every expert sees the shift to remote interviews as a hindrance, however. Rotter said that thoroughly interviewing everyone involved and compiling all available evidence is more helpful for judging credibility than analyzing a witness' demeanor. And witnesses may also be more forthcoming over the phone.

"A lot of times when someone can't see you, and you're doing it over the phone … they're willing to tell you more," he said. "I don't think the current landscape with the stay-at-home order changes the validity of the information you're getting."

Time to Train?

Anti-harassment training may be the last thing on employers' minds during the pandemic, especially if they don't operate in one of several jurisdictions that make them conduct periodic sessions. But training now may not be such a bad idea.

"I think a lot of employers are feeling like they're losing production hours as it is," Rotter said. These employers can make good use of that time by holding online training sessions, which will leave them one less thing to do when regular work resumes, he said.

Training tends to be less effective online than in-person, where employers can make sure their workers attend and trainers can more easily engage their audience, Rotter conceded. But there are a few ways trainers can make their Zoom presentations more engaging.

"It's more important to emphasize real-world examples," he said. "You can do breakout rooms and you can monitor those rooms, and you can give people … assignments or engagement, or you can make it interactive. I don't think that's necessarily lost in this age of WebX and Zoom."

--Editing by Emily Kokoll and Jill Coffey.

Clarification: This story has been updated to clarify an attorney's comments.

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