Howard Levitt: The virtual work environment has become a virtual playground

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I’ve fielded a growing number of calls from employer clients about workplace harassment during virtual work meetings.

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Workplace harassment has increased during the Covid-19 epidemic and workers have no physical contact with their co-workers. Yet remote work channels – text, video calling platforms, phones – are not usually monitored and give harassers a sense of impunity.

Take this scenario. You are representing your company’s human resources team and attending a zoom meeting remotely. Among the participants are executives of the company. While an official was presenting, another employee accidentally shared his screen during a meeting, a pop-up ad about a trip to South America. The executive paused in the middle of the sentence, squinted at the ad, and made a comment about the sexy girls in South America – and the embarrassed employee was certainly not one of them. The other participants burst out laughing. You look at your screen uncomfortably, unsure of what to do next.

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If you can relate to this scenario, according to a national survey of 4,878 respondents, you are among 71.4 percent of people who have been harassed in their online workplace, including sexual harassment. Prior to 2020, virtual meeting platforms in most traditional workplaces had no virtual workplace behavior policy to address sexual harassment incidents. Employees have experienced increased informality during virtual meetings, encouraging foul play.

The suspension and termination of New York writer Jeffrey Tubin for exposing her genitals during a zoom meeting is a prime example of the harm of sexual harassment in this new virtual environment. And if you’ve been a spectator at a meeting like this, as I mentioned with my clients, you probably haven’t felt brave enough to speak out against the sexual misconduct of a senior employee.

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This is the new territory and employers must set the initial rules. Like a traditional office, the virtual work environment provides protection for employees against harassment in the workplace. Occupational Health and Safety Act (“OHSA”) (or Canada Labor Code For federally regulated staff). The OHSA defines workplace harassment as: “(a) engaging in offensive remarks or behavior against an employee in the workplace that is known to be undesirable or reasonable, or (b) sexual harassment in the workplace.” The workplace at OHSA refers to “any land, premises, location or thing where a worker works, in or near.”

Annoying remarks, like the one in my previous scene, are prohibited under OHSA. The executive’s comment was unwelcome, sexual in nature and occurred in a work environment protected by OHSA.

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What should you do as an employer?

There is a clear workplace harassment policy. Due to the increase in virtual sexual misconduct, I have recently been asked to update harassment policies in many workplaces to include virtual harassment. In addition to the language of zero tolerance, employers typically include sexual harassment, examples of virtual sexual and other types of harassing misconduct, and the need to provide relevant appropriate discipline for everyone. Employees should be educated about workplace harassment policy and sign an updated policy document.

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Establish procedures to deal with harassment in the workplace. Policy has no teeth without application. Employers should set up an easily accessible complaint channel. Staff should be trained to act immediately when meeting hosts are asked to remove the harasser and those who attend the virtual meeting are told to block sexual harassment until harassment allegations are addressed. Your IT team should be trained to monitor messages during and outside the meeting in order to remove harassing content and prevent harassers from participating. Any misconduct on the employer’s virtual platform should be flagged by IT for employer investigation.

Establish remote work methods. Employees should be instructed about the proper use of their employer’s virtual tools when engaging with coworkers and clients and avoiding giving out personal phone numbers. Employers should determine what to do and what to do to use the virtual platform.

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What should you do as an employee?

It is important to share any incidents of harassment with your employer immediately. Notify your employer of any violations of the Workplace Harassment Policy and follow up its investigative and disciplinary procedures for such allegations. If there is no policy, file a written complaint to HR (so the record is clear) or, in the absence of HR function, file with a more senior management.

Remote work blurs the lines between what is and isn’t acceptable behavior in the workplace. Employers have a legal obligation to provide a safe work environment that extends across this state.

Got a question about employment law during COVID-19? Write to Howard at [email protected]

Howard Levitt Levitt is Sheikh’s senior partner, employment and labor lawyer with offices in Toronto and Hamilton. He practiced employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada.