September 16, 2024
While sexual harassment prevention training has always been crucial, the importance of educating employees on how to prevent sexual harassment in the workplace has grown in light of high-profile cases and social media campaigns like #MeToo. Fortunately, over time, employers’ attitudes have shifted toward proactively addressing workplace harassment. Employees rightfully expect their employers to establish a secure and inclusive work environment. However, as the “workplace” continues to expand with the introduction of Artificial Intelligence (AI), remote or hybrid offices, and advanced communication technologies, harassment has found a new, more elusive platform: the virtual workspace.
While workplace harassment has historically been associated with physical office spaces and holiday work parties, it is essential to acknowledge the migration of harassment to digital platforms such as Zoom, Slack, and Teams. With this contemporary workplace in mind, the Equal Employment Opportunity Commission (EEOC) has issued guidance which reaffirms that sexist, racist, or other discriminatory speech conveyed via virtual platforms may be viewed as workplace harassment. Based on this recent guidance, employers should be mindful of incorporating these channels in their prevention initiatives.
Defining Sexual Harassment and Discrimination in the Workplace
As a general reminder, sexual harassment encompasses unsolicited sexual advances, requests for sexual favors, inappropriate comments regarding an individual’s sex, and other verbal or physical conduct of a sexual nature. This behavior is a form of discrimination that violates Title VII of the Civil Rights Act of 1964, applicable to employers with 15 or more employees, including state and local governments, employment agencies, labor organizations, and the federal government. Generally, there are two types of unlawful sexual harassment: quid pro quo and hostile work environment.
Workplace harassment may also include prohibited behavior on the basis of any legally protected status, including: race, color, religion, sex, pregnancy (including lactation, childbirth, or related medical conditions), sexual orientation, gender identity, gender expression, age (40 and over), national origin or ancestry, physical or mental disability, genetic information (including testing and characteristics), veteran status, uniformed service member status, or any other status protected by federal, state, or local law.
It’s worth noting the EEOC’s recent guidance also provided clarity on less obvious forms of potentially harassing behavior, which includes:
Harassment Based on Perception: Behavior towards a person based on a particular characteristic, even if the perception is incorrect.
Harassment by Association: Behavior towards a person who does not share the same protected characteristic as the victim, which includes family relationships and close friendships.
Don’t Just Focus on Required Harassment Training
Numerous states have made it a priority to increase their sexual anti-harassment training requirements. Notably, New York State mandates employers to publish a formal complaint form. As of January 2024, several states including California, Connecticut, District of Columbia, Illinois, Maine, New York State, Oregon, Rhode Island, Vermont, and Washington State, require anti-harassment policies for some or all private sector employees.
However, employers are overlooking a vital tool in their arsenal if they solely concentrate on mandatory anti-discrimination and harassment training. Employers need to have comprehensive policies to address these behaviors and foster a healthy work culture, but what if your workplace doesn’t have a traditional brick and mortar location? A robust harassment policy that covers various forms of harassment and ensures employees are aware of and understand the policy is crucial. As we navigate this evolving landscape, the importance of comprehensive training for all employees, regardless of their work location, becomes increasingly apparent. Many online training courses are now incorporating guidance on inappropriate virtual conduct into their updated anti-harassment programs.
Modernize Your Practices to Prevent Harassment
As an employer, it is your responsibility to not only be aware of developing legislation but to be completely conscious of your workplace environment. While keeping abreast of regulatory requirements is a vital step, it alone won’t resolve disrespect in the workplace. Making grand statements about respect, diversity, and acceptance can backfire if you roll out the same old, stale training from 1995 year after year. To that end, there are several actions you can take:
Establish Clear Policies: Develop a clear code of conduct and sexual harassment prevention policy that explicitly addresses online behavior. Ensure these policies cover various forms of harassment, including those related to remote working and inappropriate conduct in the digital forum.
Provide Training to all Employees: Addressing workplace harassment among supervisory and non-supervisory employees is crucial, and ensuring that all employees, regardless of their role, are included in the training is essential.
Ensure Training is Up-to-Date with Current Work Environments: Training should cover the “gray areas” to reflect realistic situations that may be subtle or harder to identify. For example, an after-hours “virtual happy hour” may open the door for inappropriate behaviors or conversations while utilizing company equipment. Encourage employees to immediately report inappropriate virtual conduct just as they would if they were onsite. Workplace harassment training should be comprehensive and cover various forms of harassment, including bullying, discrimination, and the nuances of harassment, to foster a safe and respectful work environment.
Don’t Forget Nondisclosure Agreements: In addition to required harassment prevention policies, numerous states have implemented additional legislative actions like prohibiting nondisclosure provisions and mandatory, pre-dispute arbitration agreements. New York State, for instance, bars employers from including nondisclosure requirements within any settlements or other agreements when resolving a sexual harassment claim. Similarly, California, New Jersey, Tennessee, Vermont, and Washington State utilize strategies for deterring the use of nondisclosure agreements.
Be Ready to Conduct Harassment Investigations: Have a process and trained staff (or 3rd party) ready to investigate harassment complaints brought in good faith. Remote-based claims should be reviewed just as promptly, thoroughly, and effectively as they would with any other concern of potential prohibited conduct, so you can take corrective action.
Keep a Watchful Eye: Employers should be aware that the line between disrespectful behavior and harassment can be very thin, and it’s not always a black-and-white situation.
Demonstrating your dedication to a respectful workplace not only reflects a commitment to your employees, but also requires a sustained investment in ongoing development and leadership. To gain more insight on this topic, view our Addressing Harassment in the Workplace e-book.
If you have any questions regarding this Practice Pointer, please email us.