Tanzina Vega: The way we work has changed dramatically this year. Because of the pandemic, roughly 33% of us are now working from home. That's up from just 7% in 2019. This shift to a virtual workplace has presented plenty of logistical challenges. It's also created a new environment for workplace harassment. Last week, New Yorker writer, Jeffrey Toobin was suspended after exposing himself while masturbating on a zoom call with coworkers, including some of our own colleagues here at New York Public Radio.
Incidents like that. Raise questions about whether employers are prepared to protect their workers from harassment in digital spaces like Zoom and Slack. Joining me now is Sharon Vinick, partner at Levy, Vinick, Burrell, and Hyams law firm in Oakland, California. Sharon, thanks for joining me.
Sharon Vinick: Thank you for having me.
Tanzina: The Jeffrey Toobin incident is relatively extreme when we think about examples of harassment, but what else can digital workplace harassment look like?
Sharon: Well, since people are sitting in their home, we have all kinds of things that can happen. You can have a spouse who walks by without a shirt on, you can have items on someone's wall behind them or on their desks, that would be inappropriate in the workspace and then of course you have the extreme incidents, like the Toobin incident that you just talked about
Tanzina: Now, how much control should someone be able to or can someone have about those examples that you just laid out? For example, if someone walks past the behind you on Zoom and they don't have a shirt on, is that the fault of the person who's on the call or is that just something that happens to happen because we're in this work from home world that's new to all of us.
Sharon: That's the fault of the person who's on the call, the same type of laws and rules and regulations that apply in an actual workplace apply to the virtual workplace. Lots of companies already have policies that cover these sorts of issues.
Tanzina: They apply to this new world that we're living in?
Sharon: Yes, they do apply to this world that we're living in because you're still at work and you're still exposing your colleagues to the same type of conduct. Any conduct that would be illegal in the workplace is illegal in the remote workplace because the key here is it's still a workplace.
Tanzina: Now in the case of Jeffrey Toobin, he says that he thought he had turned his camera off on that Zoom call. I wasn't there. Do excuses like that, make it easier for people who are committing misconduct to get off the hook?
Sharon: It certainly didn't make it easier for Toobin. He was suspended. If I was advising an employee, and keep in mind that I advise employees, not employers, if I was advising an employee, I would tell them that they could have a claim based on that. I think employers would be quite concerned.
Tanzina: How would that work though, Susan?
Sharon: The way that it would work is that there would be a complaint made by somebody else that was on the call, there would be an investigation and then there would be action taken in the same way that it would happen in the actual workplace.
Tanzina: How do people approach handling harassment and misconduct when it happens virtually? In a traditional office setting, you would make an appointment with your human resources representative to talk about this, or talk to your boss in a closed door meeting maybe. How do you do that own?
Sharon: You would do exactly the same thing. Presumably you would send an email or a Slack message depending upon how you communicate to either your boss or the HR person and then you would make a complaint the same way you would do it if you were sitting in someone's office with the door closed.
Tanzina: From a legal standpoint, is it harder for a plaintiff to make their case when harassment is occurring online rather than in-person?
Sharon: I think in some cases it could be significantly easier to make a complaint. Depends upon the nature of the harassment. If it's an email or a Slack message, you actually have documentary evidence that it happened. If it's in aZoom meeting where there are multiple people on the call, there would be witnesses to what happened and that's very different than what often happens in the workplace setting, where it's just one-on-one harassment. If it is just a meeting between you and the harasser, it would be exactly the same as if it happened in the physical office.
Tanzina: Now, we're talking often about like some of the examples we gave her people in their own homes and what people, their co colleagues might witness through their Zoom but what about among colleagues on Zoom calls or in Slack? How does harassment play out there? What happened with Jeffrey Toobin?
Sharon: That would be exactly the same as if it were in the office. If you were, for example, in a meeting and you pulled out your penis that would obviously not be appropriate, it's not appropriate to do it during a Zoom call either.
Tanzina: Wondering whether or not companies are updating their codes of conduct to include more specific language around things like Zoom and Slack.
Sharon: I've spoken with some of my colleagues on the defense side of the bar and it really depends upon what the existing policy said. Most existing policies already talk about email and electronic communications but certainly I would think in the last week, companies would be quick to add Zoom and Slack as the ever evolving landscape has indicated that people need to be reminded that that's the same as sitting in the office.
Tanzina: We are, of course, in unprecedented times to use a word that we've been using, an unprecedented amount of times, quite frankly. We are also in the middle of an economic downturn. Lots of people have lost their jobs as a result of this pandemic. I would imagine that people might, including one of our listeners, who said that they deal with this in the same way virtually that they dealt with it in the before times. It says, "the same way as in-person laugh it off, hope it doesn't happen again." Are you hearing more people who are saying I think something weird happened? I don't really want to bring it up. I'm scared to lose my job.
Sharon: I've been practicing law for quite some time and I think that these downtimes are just like any other downtimes. When somebody's been harassed whether it's sexual or racial harassment and they still have their job, they're generally reluctant to complain where they've been harassed and then the terminated for some unrelated reason or they're terminated because they complained about the harassment. They’re more likely to go forward because finding a new job is very difficult.
Tanzina: Are there other ways that employers can be proactive about protecting employees from harassment in the work from home environment, where in some instances, sure, there may be other folks who are on that same Zoom call, but in other instances it could be just a one-on-one interaction?
Sharon: I think that employers are probably going to make sure that they continue whatever legally mandated training there is. Here in California, we have all kinds of laws that require that people have semi-annual training. I think that employers are probably going to be proactive of that, reminding people that their obligations regarding non harassment and no discrimination continue, even if you're in a virtual setting.
Tanzina: Is there anything specific that people should be paying attention to about their own behavior?
Sharon: Yes, I think that when you're sitting at your desk, whether it's remote or actual, you should look around and see what's behind you, and that you should try to treat your home office the same way you treat your office, in a building there that you get dressed up and fancy and go to work every single day.
Tanzina: Even if some people are working from their kitchen tables?
Sharon: Correct and lots of people are working from their kitchen table, but better to work from your kitchen table than sitting in your bed.
Tanzina: You heard it here from Sharon Vinick, partner at Levy, Vinick, Burrell and Hyams in Oakland, California. Sharon, thanks so much for joining with me.
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