Employers with a remote workforce should still be on guard against workplace harassment
For many people over the past year, the look of the workplace has changed. The dramatic shift to remote work during the pandemic accelerated what was becoming a growing trend for businesses, as working from home was becoming a popular way to attract and retain good workers for whom work-life balance was a priority.
However, even though the location has changed and the physical distance is greater, it doesn’t change the fact that some people just aren’t very nice or respectful. More people working remotely doesn’t necessarily change the fact that some people face workplace harassment. Technology helps keep the work team connected, but it also can facilitate harassment, as many harassers have just shifted their misconduct to the virtual workplace.
A survey earlier this year found that nearly one-half of women who have experienced harassment have had it happen remotely, while almost one-quarter said harassment had increased since they started working from home in March of 2020. It’s a reminder to employers that the vigilance and condemnation of harassment that should be a part of workplaces must continue for the scattered, remote workforce. Just because it’s out of site of the employer’s property, it may not be out of mind for some employees.
In 2012, the Ontario Human Rights Tribunal stated in a decision that online bullying and harassment may be sufficiently connected to the workplace to attract liability for discrimination in employment. Online harassment outside working hours may contravene the “harassment in employment” provisions of the Ontario Human Rights Code if the conduct is “with respect to employment” or “in the workplace,” said the tribunal in Taylor-Baptiste v. OPSEU, 2012 HRTO 1393.
When it comes to remote work, the line between working hours and non-working hours is blurred, as is the workplace. And in the nine years since then, the presence and influence of social media in our lives has only increased.
The following year, the same tribunal confirmed the application of human rights legislation to workplace-related Internet postings. In Perez-Moreno v. Kulczycki, 2013 HRTO 1074, an employee at a golf resort was ordered to take online human rights training after posting racist comments about a co-worker on Facebook — the co-worker who filed the complaint didn’t seek monetary compensation but rather wanted the employee removed from the workplace, which was outside the tribunal’s jurisdiction.
In 2014, an Ontario arbitrator upheld the firing of a male employee of a construction company who complained about a female co-worker on Facebook. The online complaint led to multiple comments by other co-workers who were Facebook friends that, while not identifying the female co-worker, referred to identifying physical characteristics and suggestions of a physically and sexually violent acts. The employer terminated the employee for making physical and sexual threats that had embarrassed the female co-worker, with which the tribunal agreed, finding that the Facebook comments constituted sexual harassment: see Tenaris Algoma Tubes Inc. and USWA, Local 9548 (D.), Re, 2014 CarswellOnt 8009.
If harassment is a problem in the workplace and there are certain individuals who feel they can perpetrate it, remote work probably isn’t going to stop them. Regardless of the physical location of a company’s workforce, the wired and connected world will make sure that harassers have the tools to connect with victims unless employers keep their guard up.