Sexual Harassment Moves Online
As many white collar workers continue to work remotely from home, sexual harassment continues to plague the workplace. Harassers who harass over Zoom may employ different and less physically invasive tactics than harassers in an office setting. The traumatic results are the same.
As employees interact throughout the workday over Zoom, email, and text messages, rather than in a physical office setting, the medium used by sexual harassers may have changed. But the conduct remains illegal. Targets of harassment must be aware of their rights to oppose such unwelcome conduct.
The scandal involving political analyst Jeffrey Toobin, who inexplicably exposed his genitals to his New Yorker coworkers while masturbating during a Zoom teleconference, is just a particularly notorious and egregious example of a common problem in remote workplaces.
Toobin “apologized” for what he called an “embarrassingly stupid mistake.” No one can seriously consider his actions to be a mistake. No one masturbates “by mistake,” and certainly not in the workplace. Regardless whether he believed that he turned off his video feed and muted his microphone, the fact remains that he masturbated during a work conference. Insane.
Had he masturbated in his office in pre-pandemic times and “mistakenly” left his office door open and exposed himself to his colleagues, few would argue that his conduct merited termination. No one would consider such conduct to be a “mistake” or an appropriate topic to joke about.
The Definition of Sexual Harassment in the Online Workplace
The EEOC identifies a variety of conduct that can constitute “sexual harassment.” The common characteristic is that the conduct is unwelcome. It can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Sexual harassment does not have to relate to sexual activity. It also includes offensive remarks about a person’s sex, such as negative stereotypical comments about women in general.
Sexual harassment can occur regardless of the sex or gender of the target or the harasser. Harassment need not be opposite-sex or opposite-gender harassment.
The harasser can be the target’s supervisor, another management-level employee, a co-worker, or someone who is not an employee of the employer, such as a client or customer. If a customer or client subjects you to sexual harassment during online workplace interactions, your employer has an obligation to take action once they are aware of the problem.
The blurred lines between the office and the home create a number of new problematic areas related to sexual harassment. Even before the pandemic , online sexual harassment often took the form of sending unwanted explicit text messages or visual images or videos.
But what about the supervisor who repeatedly appears shirtless in morning Zoom calls because he supposedly “just finished exercising,” or “just got out of the shower”? With many workers’ bedrooms doubling as office space, there have been instances where harassers have “accidentally” left sex toys or other sexually explicit material visible in the background of their video calls.
These types of inappropriate behavior, if egregious or frequent enough (see the discussion of the “severe or pervasive” standard below), can rise to the level of illegal sexual harassment.
Reactions to the Jeffrey Toobin Scandal Reveal that Many Men (and Women) Still Don’t Get It
There was no need for any to rush to defend Jeffrey Toobin’s workplace masturbation, but that didn’t stop people from offering their hot takes. Some wrote off his conduct as an isolated instance of “bad judgment,” while others decried the invasion of the work sphere into the privacy of the home at our most private times–as if the man was not masturbating during a work call.
But these pitiful defenses of Toobin are useful in illustrating the responses that targets of sexual harassment are likely to face in the workplace when they report their own harassment, and in the courts when they seek compensation for the destruction that sexual harassment can wreak.
Most sexual harassment–especially online harassment–does not occur in such a public and undeniable manner as the Toobin incident. For most people targeted by sexual harassment, no colleagues witness the conduct in real time, and typically the harasser does not target other current employees. His previous targets have all left the company, either because they quit to escape the harassment, or the company fired them for reporting him. This intentional isolation makes it much more difficult and risky to report sexual harassment to a supervisor or to Human Resources.
Sexual Harassment Law Does a Horrible Job of Protecting Employees from Harassment
Title VII is the federal law that prohibits sexual harassment nationwide. Unfortunately, judges across the country have created enormous loopholes that–purposefully or not–protect sexual harassers. One of the most effective loopholes is the “severe or pervasive” standard that must be met to prove that illegal sexual harassment has occurred.
The text of Title VII does not include the phrase “severe or pervasive.” Yet courts now interpret Title VII to require that a sexual harassment victim prove that the harassment was so “severe or pervasive” that it altered the victim’s working conditions.
To put this in the plainest terms possible, this means that the courts allow sexual harassment in the workplace. You read that right. Sexual harassment is perfectly legal (say these judges) so long as it isn’t too severe, or too frequent, whatever that means.
One would hope that a violation of Title VII occurs when a coworker openly masturbates during an online work meeting, but the determination of what conduct is sufficiently “severe” is made one judge at a time, one case at a time.
The “pervasive” part of the “severe or pervasive” standard is often used by judges to grant a free pass to occasional harassers, whose conduct is dismissed as “simple teasing,” “offhand comments,” or “isolated incidents.”
Some states and localities are eliminating this “severe or pervasive” loophole in their state and local anti-harassment laws, but far too few employees are covered by this patchwork of progressive legislation.
For now, most employees who are targeted with sexual harassment are forced to negotiate the unpredictable protections provided by Title VII. It is inexcusable but not surprising that as a nation we leave targets of sexual harassment in such a vulnerable and precarious position. If you or someone you know is facing online sexual harassment in the workplace, there are concrete actions you can take to protect yourself, and we’ll delve into these actions in future posts.