Howard Levitt: Virtual Work Environments Have Become a Virtual Playground for Sexual Harassment

It is counterintuitive that workplace harassment has actually increased in the workplace during the COVID-19 pandemic with employees having no physical contact with their workmates. Yet remote working channels — text, video calling platforms, phones — are generally unmonitored and have provided harassers with a sense of impunity.

Take this scenario. You represent your company’s human resources team and are attending a Zoom meeting remotely. Among the attendees are company executives. While one of the executives is presenting, another employee accidentally shares her screen during the meeting, a pop-up advertisement about travelling to South America. The executive pauses mid-sentence, squints to view the advertisement, and makes a comment about sexy girls in South America — and the embarrassed employee certainly is not one of them. Other attendees erupt with laughter. You look at your screen uncomfortably, unsure of what to do next.

If you can relate to this scenario, you are among the 71.4 per cent of individuals who experienced harassment, including sexual harassment, in their online workplace, according to a national survey of 4,878 responses. Prior to 2020, most traditional workplaces had no virtual workplace conduct policy to address sexual harassment incidents on virtual meeting platforms. Employees have experienced increased informality during virtual meetings, emboldening foul play.

New Yorker author Jeffrey Toobin’s suspension and eventual termination for exposing his genitals during a Zoom meeting was a prime example of the sexual harassment pitfalls of this new virtual environment. And if you were a bystander in such a meeting, as I have noted with my clients, you likely did not feel sufficiently emboldened to speak against a senior employee’s sexual misconduct.

This is new territory and employers must set the ground rules. Similar to a  traditional office, virtual work environments afford protections for employees against workplace harassment under the Occupational Health and Safety Act (“OHSA”)( or the Canada Labour Code for federally regulated employees). The OHSA defines workplace harassment as: “(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment.” Workplace in the OHSA is defined as “any land, premises, location or thing at, upon, in or near which a worker works.”

Vexatious comments, such as that of the executive in my previous scenario, are prohibited under the OHSA. The executive’s comment was unwelcome, sexual in nature and occurred in a work environment protected by OHSA.

What should you do as an employer?

Have a clear workplace harassment policy.

I have been asked to update many workplace harassment policies recently to include virtual harassment since virtual sexual misconduct has increased. Besides the zero tolerance language employers generally include regarding sexual harassment, it is essential to provide examples of virtual sexual and other forms of harassment misconduct, and the relevant appropriate discipline for each. Employees should be educated on workplace harassment policies and should sign an updated policy document.

Establish procedures to address workplace harassment.

A policy without enforcement has no teeth. Employers should establish an easy-to-access complaint channel. Staff should be trained to immediately act when they observe sexual harassment by asking the meeting host to remove the harasser, and to block individuals who engage in foul play from attending virtual meetings until the harassment complaint is addressed. Your IT teams should be trained to monitor messages during and outside of meetings to delete harassing content and block the harasser from participating. Any misconduct on the employer’s virtual platforms should be flagged by IT for the employer’s investigation.

Establish remote-working procedures.

Employees should be instructed on the appropriate use of their employer’s virtual tools when engaging with co-workers and clients and to avoid giving out personal phone numbers. Employers should also establish the dos and don’ts for using virtual platforms.

What should you do as an employee?

It is imperative that you promptly share any harassment incidents with your employer. Place your employer on notice of any breaches of the workplace harassment policy and follow its investigatory and disciplinary procedures for such complaints. If there is no policy, file a written complaint (so the specifics are clear on the record) with HR or, in the absence of an HR function, with more senior management.

Remote working has blurred the lines between what is and is not acceptable behaviour in the workplace. Employers have a legal duty to provide a safe working environment which extends to this realm.