What should employers be watching for?
Since COVID hit in full force in March 2020, many employees started working from home and having work-related discussions — and even parties — via videoconference.
Now that people are returning to the workplace in person, the risk of harassment claims is going to increase. There are at least two reasons for this. First, Jeffrey Toobin is an outlier. (Let us hope.) For most people, it’s easier to harass a co-worker in person than on Zoom. Second, employees who have been cooped up in their homes for a year and a half may be a little “restless,” if you know what I mean and I think you do.
So what, as an employer, can you do to keep the return to the workplace from becoming a harassment disaster? Here are a few areas to watch:
No. 1: Make-up harassment training. Chances are that you didn’t have harassment training during the lockdowns for obvious reasons: Too difficult to have “virtual” training that is effective, less concern about harassment with everyone remote from everyone else, more important things to do during a pandemic that required massive furloughs and layoffs and other disruptions to your business. If that describes you, then go ahead and get harassment training on the calendar to take place before the end of 2021. Ideally, you’ll have separate sessions for management and non-management employees. The Equal Employment Opportunity Commission encourages employers to use an “interactive” format — either in-person training, or a computer program that requires some sort of active participation by the user.
No. 2: Eavesdropping and recording precautions. Of course, with the Delta variant, not quite everyone is rushing back to the workplace. If you are investigating a harassment allegation and have to do your interviews via videoconference, take a few precautions:
- Ask the person you are interviewing to not record the conference without getting your permission in advance.
- Ask the person you are interviewing to assure you on the record that he or she doesn’t have someone else hiding out in the room or within earshot of the interview.
- If you record the interview, get the consent of the interviewee beforehand (and, needless to say, record the consent). Even if you’re in a one-party consent jurisdiction, getting the consent of the interviewee is a best practice. If you’re in a two-party consent jurisdiction, then you don’t have a choice.
No. 3: The joy of texts. In any harassment investigation, don’t forget to review text messages. Text messages are making all the difference in some cases I’ve been handling recently, and in a good way. Emails are fine, but people have become more professional and businesslike in their email communications.
On the other hand, texts are the Wild, Wild West — anything goes.
And that immediacy, spontaneity, and lack of filter in text messages can really help you determine whether a harassment claim has validity. Don’t overlook this critical evidence!
No. 4: Sexual orientation and gender identity. You will want to make sure that your harassment policy specifically references harassment based on sexual orientation and gender identity. (You knew that already, right? Of course you did. I was just testing you.)
Also, be sure to treat allegations of harassment based on sexual orientation and gender identity as seriously as you would treat other harassment allegations.
*Justice Amy Coney Barrett was not on the Court when Bostock was decided. In late 2020, she replaced the late Justice Ruth Bader Ginsburg, who had voted with the 6-3 majority.
No. 5: Tougher state laws. In a state like my dear North Carolina, we usually follow federal law because we don’t have much state law relating to workplace harassment. In California, it’s a different story. California laws are more pro-employee than federal law, to the point that Californians often choose to not even bother with the EEOC or Title VII. The good part is that if an employer is in compliance with California law, it should be in super-duper compliance with federal law. You’ll definitely want to be conscious of the state (and even local) harassment laws in the jurisdictions where you have employees.
And, in conclusion . . .
One final bunch of words. All the old advice still applies, too. You want to have a policy that is in plain language and easy for employees to understand. (And if you have a multilingual workforce, you want to have your policy translated into all the languages that your employees speak.) You want to act promptly to address complaints of harassment, and you want to conduct a thorough investigation that is fair to both the accuser and the accused. Assuming your policy has been violated, you want the punishment to fit the crime. You want to prohibit retaliation against the complaining party and any witnesses who participated in the investigation. And you want to follow up periodically with the accuser to make sure there are no remaining concerns. (This is especially important if the accused employee is still working there.) Finally, you want to do a sober self-assessment when it’s all over to determine whether there are things you could have done better. If so, go ahead and make those changes right now, before a million other things happen and you forget all about it.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
