Gender-based violence generally increases in times of crisis, such as during a pandemic or following a natural disaster.[1] Companies responding to COVID-19 have reduced on-site personnel and facilitated working remotely, policies that on their face seem to reduce the chance for hostile environments. There are, however, several ways these pandemic-shaped policies create risk. Given the vaccine's slow rollout and companies' widespread commitment to continuing remote work, it makes sense to take a closer look at the risks presented, as well as what employers and employees can do to prevent harm.
Sexual Harassment, Generally
Sexual harassment is inappropriate and unwelcome conduct based on sex, gender identity or expression, sexual orientation, pregnancy, or marital status.[2] California’s Fair Employment and Housing Act (FEHA) recognizes two forms of sexual harassment, quid pro quo harassment and hostile environment harassment.[3] In this article, we look at how new company policies responsive to the pandemic create new risks of hostile environments.
Creating or Maintaining a Hostile Environment
A hostile work environment is created when unwelcome comments or acts based on sex, gender, or other protected quality unreasonably interfere with the employee’s performance or create an offensive environment.[4] To be illegal, the conduct must be (1) unwanted by the plaintiff, (2) offensive to a reasonable person, and (3) severe or pervasive.[5]
The conduct that can create a hostile environment goes beyond the stereotypical lewd remarks. In fact, the type of conduct that can create a hostile work environment need not be sexual in nature at all, it simply must be motivated by a prohibited trait (e.g., a person’s sex, gender, or sexual orientation). Thus, if male employees play practical jokes on the only female employee, such practical jokes—even though not sexual in nature—can be the basis for a hostile work environment claim.[6] Similarly, the conduct does not need to be directed at a specific employee.[7] If a male supervisor speaks lowly of women generally, his comments may give rise to a claim even though they were not directed at anyone in particular.
Return-To-Work and Telecommuting Issues
One common response to the pandemic is to reduce the number of people in the office, in some instances down to a handful of essential workers. While good for slowing the spread of the virus, in a study on harassment in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) found that isolated workplaces pose a greater risk for harassment because “there generally are no witnesses to the harassment.”[8] With less people around, a coworker may make a racy comment or joke that he or she otherwise would not make. The reduced density also decreases the chance for bystander intervention.
Zoom meetings (and happy hours) likewise provide new opportunities for inappropriate behavior.[9] For starters, unsupervised employees working from the comfort of their own home may forget all of their sensitibity training, lessons they generally associate with how to behave at the office. This can lead to more off the cuff, offensive, remarks. Zoom meetings also allow people to learn more about their coworkers, including characteristics that put them in a protected group. A Wisconsin worker was awarded $300,000 in damages after her employer suggested that she did not need a promotion because she had a husband to pay the bills and kids to care for.[10] Issues may likewise arise from employees not appreciating the limits of the technology. In another case, a court found that a derogatory comment overheard by a female coworker as she entered a meeting room sufficient to allow her sexual harassment case to go to trial.[11]
Tips for Employers
There are some things that employers can do to reduce their exposure. Employers can raise awareness with an internal campaign. Employers can also remind employees to report any unwanted conduct to management.
At minimum, California employers must stay current with California's strict harassment training requirements. California law requires all employers of 5 or more employees to provide 1 hour of sexual harassment and abusive conduct prevention training to nonsupervisory employees and 2 hours of sexual harassment and abusive conduct prevention training to supervisors and managers once every two years. The law requires the training to include practical examples of harassment based on gender identity, gender expression, and sexual orientation. Employer FAQ
Tips for Employees
Employees experiencing unwanted conduct should both keep a record of the conduct, with dates, quotes and witnesses, and report the conduct to management. If the matter is not resolved, employees should contact an attorney well-versed in the protections afforded victims of harassment in the workplace.
[1] Mittal S. and Singh T., Gender-Based Violence During COVID-19 Pandemic: A Mini-Review, 1 Front. Glob. Women’s Health 4 (Sept. 2020), available at: https://www.frontiersin.org/articles/10.3389/fgwh.2020.00004/full.
[2] Cal. Gov’t. Code § 12940(j)(1), (j)(4)(C) (“For purposes of this subdivision, ‘harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.”).
[3] Cal. Code Regs., tit. 2, § 11034(f) (“Sexual Harassment. Sexual harassment is unlawful as defined in section 11019(b), and includes verbal, physical, and visual harassment, as well as unwanted sexual advances. An employer may be liable for sexual harassment even when the harassing conduct was not motivated by sexual desire. A person alleging sexual harassment is not required to sustain a loss of tangible job benefits in order to establish harassment. Sexually harassing conduct may be either ‘quid pro quo’ or ‘hostile work environment’ sexual harassment.”)
[4] Cal. Code Regs., tit. 2, § 11034(f)(2) (“Hostile work environment sexual harassment occurs when unwelcome comments or conduct based on sex unreasonably interfere with an employee's work performance or create an intimidating, hostile, or offensive work environment.”).
[5] Cal. Code Regs., tit. 2, § 11034(f)(2)(A) (“(A) The harassment must be severe or pervasive such that it alters the conditions of the victim's employment and creates an abusive working environment. A single, unwelcomed act of harassment may be sufficiently severe so as to create an unlawful hostile work environment. To be unlawful, the harassment must be both subjectively and objectively offensive.”).
[6] See, e.g., Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197 (10th Cir. 2006) (reversing grant of summary judgment on qualified immunity where plaintiff’s coworkers, who worked at an airport, had police pretend to arrest plaintiff as a practical joke).
[7] Miller v. Dep’t of Corrections, 36 Cal.4th 446 (2005); Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264 (2006).
[8] U.S. Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, “Risk Factors for Harassment” (June 2016), available at: https://www.eeoc.gov/select-task-force-study-harassment-workplace.
[9] EEOC, Select Task Force on the Study of Harassment in the Workplace, “Risk Factors for Harassment” (June 2016) (noting that social atmospheres can increase the risk of inappropriate behavior).
[10] Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004).
[11] Volovsek v. Wisconsin Dept. of Agric., 344 F.3d 680 (7th Cir. 2003) (reversing summary judgment for defendant based in part on plaintiff overhearing supervisors talking about keeping women “barefoot and pregnant”).