Workplace Harassment and Investigations in the Virtual Environment

This article was updated on 4/13/21 from its first publication date of 7/29/20.

Removing employees from the physical workplace does not remove harassment from the workplace. Employers can be liable for harassing conduct even if it occurs outside the physical workplace. It can appear digitally in social media posts or even in the perceived safety of an employee’s home. During the past 12 months, employees who work remotely may be reluctant to report inappropriate behavior. Many employees say working from home has resulted in a blurring of work hours versus non-work hours, creating an increased risk of inappropriate interaction. In-person, a worker may know not to make a racial joke or pass around nude pictures in the workplace, but the lines between what is and isn’t OK tend to blur online. Management may not be aware of inappropriate conduct due to physical separation from employees and lack of ability to observe and assess signs of harassment.

In response to the pandemic, many employers pivoted to work from home for the first time. Many employers will continue to allow remote work post-pandemic. The coronavirus pandemic may have elevated safety, staffing, and other immediate concerns above harassment. Still, harassers haven’t changed their ways, and employers’ obligation to shield workers from mistreatment based on their sex, race, and other protected characteristics has not lessened.

Review Your Current Harassment Policy

In order to provide a defense against potential claims and as a legal requirement in some jurisdictions, such as Oregon, employers must have a robust and comprehensive anti-harassment policy. A complete employer harassment policy should contain a clear statement that the prohibitions apply to spoken or written words and e-mail, text messages, and social media posts that employees, customers, vendors, etc., may see. And a statement that the policy applies not only in the workplace but also at company-sponsored business and social events or events with co-workers entirely unrelated to the workplace. This language in a harassment policy is even more critical now that the workplace may include the employee’s home. It is time to review harassment policies to ensure it covers conduct outside of the physical workplace and in the digital forum. Along with the statements above, consider adding language that addresses explicitly inappropriate behavior during an online work video call. 

Train Managers to Look For Signs of Harassment

Managers should receive training and guidance on spotting behavior that may indicate harassment or violation of company policy. Not all harassment complaints come to management by way of direct report. While employees are working remotely, pay attention to the following signs of potential harassment, including: 

• An employee who becomes quieter or withdrawn on Zoom
• Employee’s reluctance to turn on video during a call
• Inappropriate dress by employees during a video call
• Offensive photos, signs, or décor in an employee’s workspace displayed on a video call   

Managers must sharpen their sixth sense and be hyper-aware of these and other employee interactions that could be a sign of unreported harassment or inappropriate conduct.  

Prevent Harassment From Third Parties

Employers’ legal obligations to prevent harassment extend to harassment perpetrated by third parties such as vendors or customers. During the pandemic, hijacking of video conferencing, so-called “Zoom Bombing,” by unknown third parties became so prevalent that the FBI issued warnings against the activity. Employers have a duty to prevent unwanted sexual imagery or racial slurs while using technology to host meetings. Additionally, employers must be cautious about unauthorized disclosure of employee’s personal and confidential information. Best practices include:

• Review your conference provider’s privacy policy and user agreement. Also, ensure you have the most recent version of your video conference provider’s software before launching a new meeting.
• Avoid publicly sharing a Personal Meeting ID (the number users need to find your Zoom call)
• Use a Waiting Room to screen who can come into the meeting room
• Require users to log in with a password
• Disable custom backgrounds that allow users to show images as a backdrop
• Prevent participants from sharing their screen, recording, or taking screenshots of content
• Mute participants upon entry, or when they become disruptive
• Turn off file transfers and annotations
• Disable private chat
• Remove disruptive participants

If an unwanted third party disrupts a work call, be prepared to follow up with all impacted employees and communicate steps taken to prevent harassing disruptions from occurring again. Follow up with legal counsel and consider reporting conduct to the authorities.

Investigate Complaints

During the pandemic, employers still have a legal duty to investigate harassment complaints promptly. Remote working and social distancing requirements do not eliminate this requirement but do pose unique challenges for investigators. While certainly not preferable to in-person interviews, in comparison to purely telephonic interviews, videoconferencing allows investigators to assess the witness’s credibility better and to share documents with the witness for questioning. It may be easier to determine credibility by using video conferencing now instead of in-person interviews where masks cover a witnesses’ facial expressions. If an employer has a suitable protocol already for doing a harassment investigation, they should follow those protocols, even remotely, to the best of their ability. Don’t delay an investigation during the pandemic but consider these additional suggestions to ensure it’s done to the highest pre-pandemic standard:

• Ensure that the videoconferencing software does not allow for unilateral recording. A witness may also need to be cautioned not to record the interview in any form. 
• Investigators should be thoughtful about how to use and ask witnesses about documents during interviews.
• It can be more challenging to assess a worker’s credibility remotely than in person, where an investigator can carefully watch a witness’s 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 a video interview.
• The witness may use the limitations of remoteness as an advantage. For example, a witness could drop the video or teleconference or feign technological issues as a tactic during the interview to avoid responding to a difficult question. A witness could also communicate with other parties during the interview to “get their stories straight.”
• Before the interview, the investigators should consider establishing an alternative means of communication if the preferred method suffers from technological issues. A trial run-through is also advisable to address technical obstacles.

Training

Anti-harassment training may be the last thing on employers’ minds during the pandemic, especially if they don’t operate in one of several states that mandate training. Currently, we are offering Workplace Harassment Awareness Training through virtual instructor-led classes or on-demand classes.

For those in charge of conducting investigations for their organization, we offer the virtual instructor-led class, Conducting Effective Internal Investigations. This half-day class teaches participants how to conduct witness interviews, appropriately document the investigation, assess witness credibility, and prepare an investigation report. It also covers the legal rights of investigation participants and recommendations for post-investigation follow-up. Our next session is April 23, 2021.

Eligible Archbright members are encouraged to contact the HR Hotline regarding policy updates and advice on appropriately responding to harassment in the physical and remote workplace. Since the pandemic began, Archbright has enhanced its investigation services to allow for compliant and effective remote investigations and offers online investigation services.