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Labor Law: Working virtually doesn't obviate harassment
Labor Law

Labor Law: Working virtually doesn't obviate harassment

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RTD Metro Business law columnist, Karen Michael.

Sexual, racial or other misconduct, if done virtually, is still harassment.

With so many people working remotely, some employers have neglected to set standards for conduct while conducting business virtually. When employees don’t realize that their microphone or video are still on, the consequences can be serious.

For example, Jeffrey Toobin, a CNN legal analyst and reporter for The New Yorker, was suspended last week after it was reported that he exposed himself and was engaged in sexual behavior while on a video conference.

“I made an embarrassingly stupid mistake, believing I was off-camera,” he said. “I apologize to my wife, family, friends and co-workers.”

Toobin said he thought his camera was turned off and that “no one on the Zoom call could see me.” He added that “I thought I had muted the Zoom video.”

To be clear, exposing yourself and engaging in sex act while working is not a “mistake,” regardless of whether the camera is on.

In April, a Florida judge sent an open letter to lawyers in his county to not take calls from bed and to dress “appropriately” for online hearings. He said he saw some lawyers appear topless while participating in a Zoom call.

“One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers,” the judge wrote.”We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background.”

He told lawyers that “putting on a beach cover-up won’t cover up you’re poolside in a bathing suit. So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”

Also in April, “Today” show hosts Hoda Kotb and Savannah Guthrie and were caught gushing over guest Matthew McConaughey while the show was in a commercial break and the women did not know he could hear.

The hosts acknowledged engaging in the sexual innuendo, including a reference to “virtually making out ... because who doesn’t want that.” Co-host Al Roker then joked that “they were so busted,” which unfortunately highlights the double standard in some workplaces.

From reporters not wearing pants to one woman taking her phone to the bathroom believing she was not on video, working and meeting virtually can be problematic if standards are not set.

In today’s unusual new norm, employers should know that some workers do not have an ideal setup for great lighting, or space for a work area, and should help employees with these deficiencies.

In addition, the dog might bark, the repair person might interrupt with a knock on the door, and an employee’s 3-year-old daughter might burst in during a videoconference and climb on her parent’s lap. Those things are going to happen. We can and should lighten up in these moments unless they pose a significant distraction to the meeting or employee.

What cannot be tolerated, however, is any form of disrespect or sexual, racial or other innuendo or harassment, regardless of whether the meetings are virtual. Employers need to set the standard that the same expectations for the on-site workplace exist for virtual work. This includes on-time attendance, availability, attire and conduct.

While you might permit employees to be more casual in their attire, there is no excuse for employees to wear revealing inappropriate clothing, or show up in their underwear thinking the camera will capture a view only from the waist up.

In addition, because employees might feel hidden behind a computer, they may engage in behavior that is more familiar than they would in person. Also, backgrounds — including inappropriate pictures, banners or objects — can lead to issues Ideally, employers should ask employees to use a standard virtual background to avoid these concerns.

Employers need to communicate to employees the expectations around civility when conducting business and interacting with colleagues and customers. This is true whether working virtually or on-site.

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

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