An October 2020 Forbes.com article on harassment in the work-from-home world identified eight “red flag” signs of misconduct. “Just like the working environment has changed to a home-based environment, so has workplace harassment,” the article observed, warning “workplace harassment that follows [employees] into their homes can have devastating impacts on their mental well-being, as well as on their family.”
As of now, we don’t know if the increase in remote working will accelerate the resurgence of hostile environment claims. Yet it almost certainly will alter how you investigate and defend them and, more important, how you modify your policies and train to prevent wrongful conduct irrespective of location.
Decentralized Hostile Workplaces
The U.S. Equal Employment Opportunity Commission (EEOC) advises a hostile work environment occurs when severely or pervasively offensive conduct based on sex, race, or another legally protected classification exists. If the unwelcome conduct is of lesser severity, it must occur frequently. Alternatively, a single occurrence can constitute harassment if it’s particularly severe.
Either way, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people and negatively affect work performance.
Context remains important. Some commentators believe a remote setting increases the risk of a hostile work environment, citing an EEOC task force report observing that decentralized work may make employees feel less accountable. Others recognize claims arising in the home workplace could occur less often or face inferences of legitimacy. For example, an employee could repeatedly call a colleague in a harassing manner and say it was for work purposes.
Still others point out harassment in a remote environment could happen more frequently on chat, text, or video applications. The Forbes.com panel noted how standards of offensiveness could change because of family members’ proximity to potentially abusive communications, possibly giving rise to new manifestations of misconduct.
The remote working situation may raise an additional question: Could the employee have just hung up the telephone, ended the videoconference, or turned away? In theory, a remote worker could end an electronic communication whenever it became unwelcome. In practice, the effectiveness of that response likely would depend on who is doing the harassing. After all, an employee might well find it more difficult to hang up on a supervisor than a coworker.
Emerging Forms of Proof
The potential risks of facing work-at-home hostile environment claims also bring new uncertainty to investigating, proving, and defending harassment allegations.
Although the physical isolation while working from home should help to reduce unwelcome touching cases, other claims relating to severely or pervasively hostile environments likely will rely on evidence similar but not identical to cases arising at factories and offices. In both situations, hostile environment evidence often rests on what was said or done, requiring fact finders to weigh conflicting accounts to determine if unwelcome conduct occurred.
Therefore, as before, proving exactly what orally or visually happened during one-on-one meetings, in person or virtually, will remain difficult unless the interactions were recorded. Employees will still need to show (1) statements and conduct occurred, (2) they were harassing, and (3) the actions rose to a “severe or pervasive” level and materially (or significantly) affected their ability to work.
Hostile environment claims in the work-at-home situation, however, may provide new types of more persuasive proof than typically arises from in-person interactions in break rooms, offices, and common areas of a business:
- Because work-at-home communications likely occur electronically, such as through e-mail, video conferencing platforms, and instant messaging applications, evidence of what was shown or said may exist.
- At a minimum, digital data, calendars, phone logs, and any retained journal of video calls can establish the fact that a communication took place and perhaps when, with whom, and for how long.
Although employees will still need to prove the content of the communication was harassing, the data provide a starting point and may help with credibility assessments—for example, when one employee denies a communication exists but records prove it occurred.
Special Case of Recordings
Finally, since work-from-home harassment claims typically will involve electronic interactions, a real possibility exists they were recorded. Undeniably, the recipient of an unwelcomed message, photo, or video encounter at home will have the means to take contemporaneous screenshots and make audio/visual recordings. Employers, in turn, will need to review their policies and state laws on unconsented recordings to determine whether the evidence was unlawfully obtained.
At least 10 states require multiparty consent to record electronic communications, and some make it a criminal offense to tape a conversation without the approval of all parties. Also, it isn’t always clear which law applies when the parties are in different states.
Moreover, some state statutes prohibit using unlawfully recorded communications as evidence. Even in the absence of such a bar, courts retain wide discretion under the rules of evidence to determine if recorded conversations constitute admissible proof regardless of whether they were made with or without all parties’ consent.
Lastly, Zoom, WebEx, Outlook, text messaging, and other applications may allow for the creation and archiving of electronically stored information (ESI), such as a transcript or a full-meeting recording. Accordingly, investigation and defense budgets can anticipate expensive ESI search and retrieval costs. Similarly, legal hold orders should cover information from such communication platforms.
Practical Steps You Can Take to Prevent Harassment
- Consider modifying your harassment and discrimination policies and training to make sure they apply to all work environments, whether in the office or remote.
- Continue to investigate every discrimination or harassment claim and identify any data the remote working platforms retained.
- Become familiar with your state laws and know what consents are necessary before recording an electronic communication or meeting.
Taylor L. Haran, Ken C. McIntosh II, and Michael A. Giudicessi are attorneys with Faegre Drinker. You can reach them at email@example.com, firstname.lastname@example.org, or email@example.com.