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The Elephant in the Room: Employees May be Gone During Coronavirus but Harassment and Discrimination Remain

The Elephant in the Room: Employees May be Gone During Coronavirus but Harassment and Discrimination Remain

Harassment and Discrimination Never Ceases

March 10, 2020 was a much simpler time than today, less than a month later. On that day, Harvey Weinstein was sentenced to a significant prison term for crimes that led, in part, to the advent of the #MeToo movement. On or around that date, heightened awareness of the evils of allowing a culture of workplace harassment was also at an all-time high. Just two weeks later, by March 23, 2020, the COVID-19 pandemic had ground the economy nearly to a halt, people were (and still are) terrified, and (perhaps somewhat symbolically) Mr. Weinstein himself tested positive for the novel coronavirus.

In just two weeks, the news cycle went from near-constant mention of allegations of sexual harassment to a nonstop “special report” on COVID-19. Although the workplace looks different than it did a few weeks ago, employer obligations have not changed, and new issues have arisen in the virtual workplace many of us are navigating for the first time.


New Priorities, but Obligations Remain

Understandably, employers are focused on keeping their employees healthy, paid, and employed during these unprecedented times. But, as the calendar marches forward, it is important to remember the progress made toward eradicating sexual harassment demons from your workplace. While your employees may be getting comfortable meeting via Zoom, Skype, or other web conferencing tools, there are entirely new forms of misconduct arising from the restrictive measures in place to ensure social distancing and reduction of the spread of coronavirus.

There has never been a better time to complete your training obligations via eLearning than now while your workforce is home in front of the computer for an extended period.  Perhaps, now more than ever, your workforce will be receptive to spending that extra hour (or two) of training and be more open to learning something new.

While it may not be front of mind at this moment, it is important to remember your organization still has an obligation to prevent harassment and discrimination in the workplace. Unfortunately for employers, state legislatures have not (as of April 8, 2020) enacted any emergency laws to check employer obligations to complete harassment training. Instead, many enforcement agencies are likely to come out of an extended shutdown looking to audit employers for compliance.


A New World Creates “New” Manifestations of Old Problems

It is important to watch for a variety of new issues popping up in the employment law arena since the majority of employees stopped going to the office and started working from home. First, there has been a rise in allegations of xenophobic and racially-based, inappropriate comments reported in recent weeks. Given the statistics reported on sites like Worldometer, nationalistic feelings, promotion of closed borders, and “fight or flight” responses are on the rise. For example, in the first weeks of coronavirus spread in the US, many employees with Chinese or Persian ethnic backgrounds reported being ostracized in the workplace, according to a March 13, 2020 Atlantic article.

Therefore, It is extremely important to remember that you, the employer, have an obligation to prevent discriminatory and harassing comments and/or messages from occurring in your workplace, be it onsite or virtual. Just because your employees may not be physically present does not mean the impact of insensitive remarks and behavior is any less damaging. Likewise, with an increase of employees finding themselves out of work, you can be certain those who lose their jobs will be more litigious than normal, as we saw in the late 2000s economic downturn.


Web-Conferencing: The Cause of and Solution to Many Problems

Two issues arose in recent weeks regarding  the teleconference provider Zoom. According to the LA Times, a number of students at a Southern California high school were taking classes online when online trolls hacked into their Zoom conference and began using racially insensitive language and posting pornographic imagery into their conversation. It is easy to see how these types of behaviors can manifest in the workplace as well, and employers need to take heightened steps to ensure that any platforms they or their employees use to communicate while working are safe, secure, and free of offensive language and imagery, both direct and indirect; the latter means that your employees must always be careful of what is going on in the background while using a conferencing program.

Also related to web-conferencing, “virtual happy hours have become a new way for employees distancing themselves from others to connect and socialize via video or web conference. While these sorts of gatherings can boost office morale and should not be discouraged, it is important to remember that there must be appropriate behavior and conduct, and it is the employer’s job (always, but especially when using company accounts, manager participation or knowledge, or other things that evidence work-sponsored activity) to ensure those office policies regarding harassment are followed. It is entirely possible to visualize circumstances when a group of employees are consuming alcohol and the conversation turns inappropriate, just as it may in a setting when employees are physically together. In order to ensure that employees are safe, it is essential to provide them with the education and support necessary, and treat these sort of gatherings just as you would an in-person happy hour (whether on or off business locations).

Coronavirus will unquestionably change the way we live and work; still, it is essential that we continue to fight against workplace harassment. Given the new challenges employers are facing, both from an economic and compliance perspective, now is the time to let your employees know that you care. Do not ignore your training obligations, and do not back off from the progress you made in recent years. Instead, now is a fabulous time to get your employees trained, up to speed, and compliant with the many state laws in place requiring you to do so. Even where you are not obligated to train, it is always a good idea to boost your culture with anti-harassment training. Syntrio is here to help.

Since 2007, Jonathan has practiced labor and employment law on behalf of management. Jonathan focuses his practice on advising employers on the prevention of harassment and discrimination issues, with an emphasis on providing in-person harassment training programs to companies of all sizes. Jonathan is licensed in California, Illinois, and Wisconsin, and maintains a national advice practice.

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