Howard Levitt: The virtual work environment has become a virtual playground for sexual harassment

Article content

I have increased the number of calls from my employer’s clients that respect workplace harassment that occurs during virtual work meetings.

Article content

It is counterintuitive that during the COVID-19 pandemic, workplace harassment actually increased and employees were not in physical contact with their colleagues. Still, remote work channels (text, video calling platforms, phones) are not generally monitored, giving harassers a sense of liability.

Consider this scenario. You represent your company’s talent team and participate in Zoom meetings remotely. Some of the attendees are company executives. While one of the executives was giving a presentation, another employee accidentally shared the screen during the meeting. This is a pop-up ad about traveling to South America. Executives pause in the middle of the sentence, squint to see the ad, and comment on the sexy South American girl-and the embarrassing employee is certainly not one of them. Other participants erupt with laughter. You look uncomfortable on the screen and don’t know what to do next.

Article content

If you can relate to this scenario, according to a national survey of 4,878 responses, you are included in 71.4 percent of individuals who have experienced harassment, including sexual harassment in the online workplace. Prior to 2020, most traditional workplaces did not have a virtual workplace behavior policy to address sexual harassment incidents on virtual conferencing platforms. Employees have experienced informal increases during virtual meetings, making fraudulent play bold.

The stoppage and final termination of New Yorker writer Jeffrey Tobin’s exposure of his genitals during a zoom conference was a classic example of the sexual harassment pitfalls of this new virtual environment. And if you were a bystander at such a meeting, you probably didn’t feel bold enough to oppose the sexual misconduct of your senior employees, as I said with the client.

Article content

This is a new area and employers need to set basic rules. Like a traditional office, the virtual work environment protects employees from harassment in the workplace. Industrial Safety and Health Act (“OHSA”) (or Canadian labor law For federal regulated employees). OHSA defines workplace harassment as follows: An OHSA workplace is defined as “a place, site, place, or above, above, inside, or near where a worker works.”

Nasty comments like the executive comments in my previous scenario are forbidden at OHSA. Executive comments were unwelcome, sexual in nature and occurred in a work environment protected by OHSA.

Article content

What should you do as an employer?

Have a clear policy on harassment in the workplace.. I have recently been asked to update many workplace harassment policies to include virtual harassment due to the increase in virtual sexual misconduct. In addition to the zero-tolerance language commonly included by employers with respect to sexual harassment, it is imperative to provide examples of virtual sexual harassment and other forms of harassment illicit activity and the appropriate discipline associated with each. Employees must be educated about workplace harassment policies and sign updated policy documents.

Article content

Establish procedures for dealing with workplace harassment.. Policies without enforcement have no teeth. Employers need to establish an accessible complaints channel. Staff are trained to act as soon as they observe sexual harassment, ask the meeting organizer to remove the harassment, and the cheating individual participates in the virtual meeting until the harassment complaint is resolved. You need to make it impossible. IT teams should be trained to monitor in-meeting and out-of-meeting messages, remove harassing content, and block harassers’ participation. Fraud on the employer’s virtual platform needs to be flagged by IT for the employer’s investigation.

Establish procedures for working from home.. Employees should be instructed to properly use their employer’s virtual tools when interacting with colleagues and clients, and when not giving out personal phone numbers. Employers should also establish recommendations and prohibitions for using virtual platforms.

Article content

What should you do as an employee?

Prompt sharing of harassment cases with your employer is essential. If you become aware of a breach of your workplace harassment policy, you will have an employer and will follow investigation and disciplinary action for such complaints. If you do not have a policy, submit a written complaint to HR (so that details are clear on record), or if you do not have HR functionality, submit it to senior management.

Working from home has blurred the line between acceptable and unacceptable behavior in the workplace. Employers have a legal obligation to provide a safe working environment that extends to this area.

Do you have any questions about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is a senior partner of Levitshake, an employment and labor attorney with offices in Toronto and Hamilton. He practices employment law in eight states. He is the author of six books, including Canadian Dismissal Law.