As we all adjust to the new “normal” at home and at the workplace (or for some people their home turning into the workplace) it is important to remember that while the workplace may be disjointed, proper workplace conduct must still be followed. On April 9, 2020 the Equal Employment Opportunity Commission issued “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to provide a friendly reminder that the laws prohibiting workplace harassment, among other things, were still in effect.
For employers having their employees work remotely, there are new and unique challenges to ensure employees are not violating federal and state anti-discrimination and harassment laws. With many employees using electronic forms of communication, such as email, Zoom, GoToMeeting, etc., there are several avenues of communication wherein harassment can occur. Combined with a more relaxed nature that often occurs when working from home, incidents of workplace harassment can occur more often than if the employees were back in the office.
During my workplace harassment training, I often spend a good deal of time discussing the various forms in which workplace harassment can occur. As many know, workplace harassment can occur in several forms, including verbal, visual, and physical harassment. The two forms of harassment that have evolved most substantially in the last decade or so is verbal and visual harassment. This is primarily driven by the ever-expanding use of computers and other means of electronic communication in the workplace.
With the increase in use of electronic means of communications in the workplace, we have seen a significant increase of claims of workplace harassment through text messages and emails. See, e.g. Fitzgerald v. Ford Marrin Esposito Witmeyer & Gleser, LLP, 29 F. App’x 740, 741-42 (2d Cir. 2002) (finding that an email proposition for sex could contribute to a finding of sexual harassment). While that is not surprising to many, it is important to reinforce proper communication practices in the workplace.
Furthermore, while the traditional cases of visual harassment often arose from pornographic magazines, inappropriate cartoons, or bikini clad muscle car calendars being displayed in the workplace, we are now seeing harassment cases arising from sexually explicit images being sent via text message and email or through “memes” that are sexual suggestive in nature.
In Elster v. Fishman, a California Court of Appeal concluded that emails containing sexually explicit images and videos amounted to sexual harassment. These emails, while sent in a joking manner, were so sufficiently severe and pervasive that the court concluded that the defendants had created a hostile work environment.
Again, while the world is primarily focused on the coronavirus pandemic, and rightfully so, employers must also not forget their obligations to ensure that their workplace is free from harassment and discrimination. One important way to achieve this goal is through proper workplace harassment training. At the Nevada Association of Employers, we are committed to providing thoughtful and effective training during these unsettled times. Please contact us to inquire about scheduling web-based training for your workforce.
