“Virtual” Sexual Harassment is an “Actual” Workplace Problem
Do your anti-sexual harassment policies and training reflect the reality that so much work is carried out online? They should!
Workplace misconduct involving online behaviour and digital interactions are spawning a growing number of lawsuits and complaints of sexual harassment in our increasingly virtual and flexible online workplaces.
Most sexual harassment caselaw these days (and cases I’ve litigated) seems to involve online activity.
Let’s talk about why this is, and review what you need to know to “beef up” your policies and anti-sexual harassment training.
What are we talking (or texting) about?
Sexual harassment in the digital age encompasses a range of inappropriate behaviors conducted through various virtual platforms. It includes any unwelcome sexual advances, requests for sexual favours, and other conduct of a sexual nature that takes place through digital interactions.
Let me spell it out the what, where, when for you:
- Online comments or group chats about coworkers
- Social media posts (work-related or to/from someone’s personal accounts): cyberbullying, doxxing, or trolling. Creating fake profiles of others. Attacking someone’s online presence.
- Video calls between employees who are working remotely
- Slack channels and other software platforms
- Calls, texts, social media posts (during work and after hours)
- Emojis in emails or texts. Many of us know what **** refers to but I gather there are other seemingly innocuous objects that mean something else (google if you are unsure!)
- Videos: unauthorized sharing of personal videos, deepfakes, or the creation of videos intended to embarrass or harm an individual’s reputation.
A Broadening of “the Workplace”
Where is the “Workplace”? Sexual harassment is prohibited in the employer’s physical workspaces. More recently, reported legal decisions (and by extension, workplace policies) provide that employers can be liable for harassment occurring “offsite”:
- A customer’s offices
- Industry-sponsored events
- Trade shows and conferences
- Business travel
- Office parties
- Even less formal “after-hours” drinks or other employee gatherings.
Fast forward to today, where “the office” is a smartphone, accessible from anywhere, at any time. Convenient for sure, but increasing digital interactions means more channels for incidents and claims of harassment.
The shift to remote and hybrid work has blurred the lines between professional and personal spaces, making it crucial for organizations to address digital harassment.
Why Has Sexual Harassment Gone “Virtual”?
Technology has broadened the definition of “the workplace” in many ways:
- We use software platforms, mobile devices, and video conferencing to interact “at work” just as (or more) often than face-to-face
- Hybrid and work-from-home requires us to rely on digital interaction
- Mobile phones are (almost!) always in our hands, with access to work and personal software applications, cameras, and social media channels
This shift to remote and hybrid work and with it, mobile devices, has blurred the lines between professional and personal spaces, making it crucial for organizations to address digital harassment.
Earlier in 2024, an Ontario court overturned an arbitrator’s decision that reinstated a group of transit workers who had been fired for spreading malicious and sexualized rumours about a female colleague over a “WhatsApp” group chat.
The Court found that workplace harassment policies extend to all employee interactions impacting the workplace environment. (Unlike the arbitrator who held that the activity occurred outside work hours, and the employees “used their personal cellphones through an on-line medium they reasonably believed and intended to be private.”)
Employers must be aware that their obligations to prevent and address harassment extends beyond the traditional work hours and physical workspace. This can become complicated – where there are privacy expectations.
Updating Anti-Harassment Policies to Include Virtual Spaces
To effectively combat digital sexual harassment, you should update anti-harassment policies to explicitly include virtual spaces. This means acknowledging that the “workplace” can extend to home offices, off-sites, and digital tools used to carry out work and/or communicate with colleagues.
Policies should clearly define what constitutes digital harassment, provide examples, and outline the reporting mechanisms and consequences for such behaviour. Regular reviews and updates to these policies will ensure they remain relevant and effective in addressing all forms of harassment.
Mandatory Policies and Training on Digital Harassment
In all North American and UK jurisdictions, legal prohibitions of workplace sexual harassment already include unlawful activities that occur via digital interaction. However, some laws now specifically require that policies and training refer to virtual activity. For example:
Do you operate in Ontario?
The Occupational Health and Safety Act(OHSA) has been updated to explicitly recognize that “workplace sexual harassment” encompasses virtual activities. This legislative update underscores the importance of addressing digital harassment in the workplace.
The amendments to the OHSA ensure that telework performed in or about a private residence is covered under workplace harassment policies. Organizations in Ontario must review and update their policies and training to comply with these new requirements and ensure a safe and respectful work environment for all employees.
Are you in New York/ NYC?
The new Sexual Harassment Prevention Model Policy and Training includes content on digital harassment. (Though the NY/NYC law has not been amended to refer to it)
Comprehensive Sexual Harassment Training for Digital Harassment
Sexual harassment training programs must also evolve to include content on digital harassment. Employees need to be educated on recognizing, preventing, and reporting harassment that occurs through digital means. The overlap between “private” life and “work” life that technology can create should also be addressed.
Ryley Learning‘s sexual harassment eLearning courses cover digital harassment and meet the requirements of US, Canada, and UK laws. These comprehensive anti-sexual harassment training programs help create a safer and more respectful work environment by addressing the nuances of virtual harassment.