The COVID-19 pandemic has changed many aspects of life for the average employee, including their workplace. Many employees are still working remotely, while some have gone back to working in the office. What has not changed or subsided is workplace sexual harassment and discrimination. Even in the virtual workplace, sexual harassment and discrimination in every form are still very much present. Unfortunately, sexual harassment and discrimination take place on apps such as WhatsApp, Zoom, or via text message or email, which is even more difficult for employers to monitor effectively. This is one additional reason, among many, to implement a strong workplace anti-harassment, discrimination and retaliation policy and to educate all employees, including management, on the definitions of sexual harassment and discrimination and what to do in the event that they have experienced, or witnessed sexual harassment, discrimination, or retaliation.
Sexual harassment is defined as unwelcomedcomments or behaviors in the workplace. There are two types of sexual harassment; both of which are still possible in the virtual workplace. The question that one has to ask himself or herself is, “Does it continually interfere with my ability to do my work?” If the answer is “yes”, then it may be sexual harassment. There are two types of sexual harassment; both of which are still possible in the virtual workplace. The first is quid pro quo, which in Latin means, this for that. Quid pro quo is seeking exchange of sexual activity for favorable employment actions. Examples include suggesting or granting a wage increase for accepting sexual overtures, or suggesting or granting a favorable work schedule for accepting sexual advances, to name a few. If a manager or supervisor displays this type of conduct the employer is strictly liable without defense. The second type of sexual harassment is creating a hostile environment. A hostile environment is conduct that is of a sexual nature by anyone in the workplace (virtual or in-person) that impairs an employee’s ability to perform their work. Examples include frequent telling of sex jokes, sending sex jokes via email or text, making suggestive comments via text. email, or in-person, inappropriate touching of others, use of sexually degrading comments, leering and suggestive looks or graphic commentary about a person’s body or sexual prowess, to name a few.
Discrimination is the act of making unjustified distinctions between human beings based on groups, classes, or other categories to which they are perceived to belong. Discrimination especially occurs when individuals or groups are unfairly treated in a way which is worse than other people are treated, on the basis of their actual or perceived membership in certain groups or social categories. It involves restricting members of one group from opportunities or privileges that are available to members of another group that are based upon someone’s race, color, religion, sex (to include pregnancy, gender identity, and sexual orientation), national origin, age (40 and older), disability, genetic information as referenced in the Genetic Information Nondiscrimination Act (GINA), military service veteran status, or any other characteristic protected by federal, state and local laws. Examples include racial or ethnic slurs, jokes, or symbols, age-related comments or jokes, disability-related comments, or any other comment, action, joke, etc. related to any of the protected classes as stated above. Whether in-person, or via a Zoom call, or text message, each of the examples of discrimination mentioned above hold the same weight, regardless of the medium.
Organizations should start their culture evaluation by reviewing their workplace anti-harassment, discrimination and retaliation policy and ensuring that every employee has received a copy of the policy, or has easy access to the policy for their reference. The policy should include a general overview of the aforementioned terms. Focusing on what is unacceptable behavior is always appropriate when formulating a policy like this, however, specifically stating what is unacceptable behavior is not always a best practice. Sexual harassment and discrimination may take many different forms; therefore, no list may capture all forms of such actions. It is also important for organizations to include wording about retaliation that states the employer’s no tolerance stance on prohibiting any sort of retaliation towards an employee who has come forward with a sexual harassment or discrimination claim. Lastly, companies should include in their policy how employees should report an incident of sexual harassment, discrimination, or retaliation. Employees may be scared or embarrassed to come forward. However, having a policy that states how the organization will deal with the claim will likely make things easier on the employee who is making the claim.
Confidentiality is often something that the employee reporting sexual harassment, discrimination, or retaliation is concerned about. While it is important to keep information confidential, it cannot always be completely confidential as the organization may need to reveal some information or the identity of the potential victim or perpetrator in order to fully investigate the claim. It is important for organizations to clearly state in their policy, pending the outcome of an investigation, that any employee who is responsible for any sexual harassment, discrimination, or retaliation is subject to disciplinary action, up to and including termination of employment.
After the organization has a policy in place and they have informed employees, it is important to then conduct anti-harassment, discrimination and retaliation training at least every two-years. While it may not be the law in every state to conduct training, it shows due diligence on the employer’s part. In light of the recent years’ claims of sexual harassment, discrimination and retaliation, there has been talk about whether it would be necessary to implement mandatory training for employers across the nation. Some states have passed statutes that mandate employers to conduct anti-harassment training every two-years at a minimum to include: California, Connecticut, Delaware, Illinois, Maine, and New York. Organizations should ensure that they have a qualified representative conducting their anti-harassment training. Training should be a two-way conversation between the trainer and the employees attending the training. If an in-person training is not possible due to the organization having a remote workforce, Zoom, or another video-conferencing application is an acceptable means of conducting the training. This still allows employees’ faces to be seen, and voices to be heard. Whether the training be in-person, or virtual, it is crucial for the trainer to always make note of each employee that was in attendance so that the organization is able to document that all employees have been trained. Anti-harassment, discrimination, and retaliation training should reiterate everything that is in the employer’s policy so that employees better understand how to utilize the policy. The more educated employees are on sexual harassment, discrimination, and retaliation and the unwelcome behaviors that may be associated with it, the more likely the employer’s culture is to be harassment and discrimination-free.
Management-level employees should also receive management-level anti-harassment training as regularly as all other employees as they are tasked with upholding the policy on a daily basis. Managers need to be able to identify when a claim of sexual harassment or discrimination has been made formally, informally, verbally, or in writing and treat those claims with equal seriousness. If a manager does not receive a complaint in writing, he/she still needs to conduct an investigation. In addition, employees look to managers for advice and consultation and management employees need to be ready to counsel an employee on a potential sexual harassment or discrimination claim. After the complaint has been made, management-level employees, or HR professionals, should begin initial investigations immediately. Delaying the start of a sexual harassment, discrimination, or retaliation investigation may subject the organization to large legal penalties.
Preventing sexual harassment and discrimination in the workplace is not only an employer’s legal obligation, it is a good business practice. Sexual harassment and discrimination in the workplace, in-person or virtual, not only poses many risks for the employees, but to the organization as well. The organization could experience financial hardship, a damaged reputation, retention issues, and a major loss of productivity. If organizations have a well written policy that is easily understood, has clear lines of communication to report sexual harassment, discrimination, and retaliation, and they are spelled out within the policy, provides anti-harassment and discrimination training at least every two-years, and has management that is willing to uphold a culture that does not tolerate sexual harassment, discrimination or retaliation, then the organization is on the right track to having a sexual harassment. Discrimination, and retaliation-free workplace. Employees are an organization’s most valuable asset and it is the employer’s duty to promote a sexual harassment, discrimination, and retaliation-free environment.
For additional information regarding sexual harassment, discrimination, and retaliation in the workplace or training options, please contact us at www.NewFocusHR.com
Written by: Patrick McKenna, SHRM-CP
HR Consultant
02/05/2021
