The Sophisticated Employer Blog

What typically comes to mind when one thinks of sexual harassment is inappropriate physical touching in the office such as a lingering hand on the back or offensive comments around the coffee machine.

While the tell-tale signs of sexual harassment have become known to employees and employers across various industries, the line between what is appropriate and what is not can easily become blurred when working remotely.

Whether it occurs in-person or while an employee is working remotely from home, employers can still be held liable for sexual harassment committed by another employee, client or even customers. Employers also can be held liable for sexual harassment if their response is not reasonably designed to stop the sexual harassment.

Under federal law, sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that explicitly or implicitly affects a person’s employment or work performance, or creates an intimidating, hostile, or offensive work environment. Michigan law tracks federal law as it relates to this analysis.

Although employees (and some mistaken managers) may believe company policies and conduct rules do not apply outside of the physical workplace, it is becoming increasingly common to see claims arise from digital, off-premises conduct. 

Since March 2020, the coronavirus pandemic forced many employees across the country to adapt to a new working environment – their homes. As employees made this transition, there has been a decrease in formality, sometimes leading to a decrease in professionalism. Lack of a formal workplace environment can foster a culture ripe for harassment.   

In fact, the risk of sexual harassment may be higher with a remote environment because employees may have less access to HR professionals and support. While working from home, employees may also have greater access to intoxicating substances, leading to poor judgment and decision making.

Video conferencing has provided access into co-workers’ homes, relationships and other private matters typically sheltered from a traditional work environment. Harassment can fly under the radar when it is occurring via Zoom rather than in the break room. And worse, leadership has less oversight, which can lead to unnoticed harassment.

The most common behaviors we have seen that can quickly lead to digital harassment include:

• Inappropriate comments, jokes or pictures sent via email, chat or text
• Sexual or discriminatory comments made during Zoom video conferences
• Employees inappropriately dressed on camera
• Commenting on a coworker’s appearance during video conferences
• Stalking via social media platforms
• Unsolicited or inappropriate communications through company messaging

There are steps employers can take to lessen the chances that harassment occurs or goes unreported:

First, employers should conduct training to mitigate the risks of digital harassment of their employees. Effective training must align with the circumstances in which employees are working in and should include real world examples of remote harassment, so employees and management know how to identify inappropriate and telling behaviors. Most importantly, all members of management must understand that employees working from home does not mean it is simply “out of their hands.” 

During this training, employees and managers should be instructed to intervene and report digital harassment if they become aware of a coworker being harassed.

Second, companies should review and update their employment policies, specifically those regarding sexual harassment, to ensure they are compliant with applicable law (such as adding protection under Title IV for transgender/gender identity discrimination) and to ensure potential digital harassment is discussed.

Policies must provide clear direction for reporting of any incidents and identify multiple (we generally recommend three) higher level employees authorized to receive such complaints. Deciding to report harassment can be difficult, and the process of reporting should be simple. If a complaint is received, the employer must take that complaint seriously, investigate the claims promptly and take appropriate action.

As the pandemic has turned the world upside down, employers must adapt and mitigate the risk of their employees experiencing digital harassment. An accessible and clear sexual harassment policy lays the foundation for an inclusive and respectful work environment, whether that environment be in the office or at home.