October 2021
Investigating Reports of Discrimination and Harassment in a Virtual World
Workplace investigations have not stopped due to the increase in remote work. Rather, the process and types of complaints have changed, creating unique challenges for investigators.
While investigating workplace issues has always been a complex process, the complexities are compounded in a world of virtual work. Now, investigators must deal with new forms of discrimination and harassment that take place behind keyboards and webcams, far from traditional office settings and the eyes of managers and other employees. The virtual work landscape also presents new challenges for employers and managers who must work to mitigate the largely digital misconduct that can lead to lawsuits.
Types of Complaints Have Shifted
Fewer in-person interactions in workplaces have driven a trend away from complaints of harassment and toward complaints of discrimination and retaliation. Allegations of workplace discrimination and retaliation are now often tied to comments or threats made over email, in texts and through other electronic channels.
In addition to race discrimination and retaliation, other common workplace investigations in the virtual world involve online bullying and sexual harassment. Notably, there has been a surge in race discrimination and retaliation complaints from people who supported or participated in protests related to the Black Lives Matter movement.
Positive and Negative Effects on the Investigative Process
Just as the way people work has changed the types of workplace complaints, so has largescale remote work changed the process for investigating complaints. Workplace investigations, as organizational leaders and human resources professionals know, involve several steps, with the centerpiece being interviews of the involved parties and any witnesses. Since the COVID-19 pandemic began, many investigations have been conducted remotely via video conference.
Conducting interviews via video increases efficiency, especially when compared to scheduling places and times for people to meet face to face. More importantly, video interviews are more private. In the past, the presence of an investigator in the office and the sight of employees going in and out of a conference room could lead to gossip and, consequently, embarrassment for the people being interviewed.
In a less-welcome development, the virtual work environment has made analyzing some complaints more difficult because there are often no witnesses to corroborate or contradict allegations. Investigators must look more frequently to documentation such as email, text messages or group chats to substantiate or disprove allegations and statements. Of course, what is typed into an email or text message or shown on a video screen is usually retained. So, unlike a face-to-face conversation that can turn a case into a he said-she said debate, electronic communications may prove especially beneficial in an investigation.
Some workplace investigators believe using video has negatively affected the interview process because it makes it harder to read body language. However, the California Department of Fair Employment and Housing points out that most investigators are not trained experts in body language evaluation and should not rely on an interpretation of body language for a credibility assessment.
Avoiding Lawsuits in a Remote Employment Environment
After understanding the current environment, the next step for HR professionals and their organizations is to protect themselves from lawsuits. Here are several things that will help.
Update Policies to Define What Constitutes the Workplace
It is important for employee handbooks, policy and procedure manuals, and other policy materials to include a standard definition of what constitutes the workplace.
Pre-pandemic, it was not unusual for employees accused of discrimination, harassment or retaliation to say, “But it didn’t happen in the workplace.” The hope was that this explanation might serve as a defense when the alleged misconduct occurred at a professional conference or some other work-related event outside the office.
Allowing large numbers of employees to work remotely has made it clear that conduct anywhere affects the working environment for colleagues. Harassment and discrimination are harmful whether they happen at a company function or from behind a computer screen at someone’s home. The policy lesson is that if it effects an employee while they are engaged in work-related activities, it probably should be considered to have occurred in the workplace.
Policies should define the workplace as including employees’ homes and other places where they may work remotely. At the same time, workplace boundaries must be very carefully delineated so organizations do not invite other types of claims that might be tangentially related to remote working locations but do not involve coworkers, managers, supervisors, clients or customers.
Different employers will have different definitions of the workplace, as well as different restrictions on that definition. Regulations will need to account for international work and other organization-specific remote work issues. Regardless of its final form, writing a carefully tailored definition of the workplace is an important first step to addressing the reality of harassment, discrimination and retaliation in a world of virtual work.
Reinforce the Code of Conduct
All the rules of professionalism that apply in traditional workplaces also apply to remote workspaces. Even though employees are not interacting in person, they should understand that they must behave online in the same manner as they would in the office.
But, as everyone knows, some individuals become “keyboard warriors,” saying things behind the computer they would not say to another person’s face. They may make inappropriate jokes, offer sexual comments or bully coworkers.
This is not unique to remote workers, as we witness it on social media every day. When it happens in remote workplaces, however, it can lead to discrimination, bullying or harassment complaints that then lead to lawsuits.
In addition, being behind a keyboard can cause people to communicate in a manner that is too casual for a workplace. Company policies and training programs should reinforce a code of professional conduct employees should adhere to no matter where they work from or what platform they use to communicate. Employees must also understand that violating the code of professional conduct may subject them to disciplinary actions.
Sometimes, people try to excuse their inappropriate comments by accusing recipients who take offense of being too sensitive or misinterpreting what they said. This excuse does not pass muster in the workplace. The perspective of the target of misconduct is always used to evaluate whether something constitutes harassment under law or under a company policy. That standard does not change whether a comment is made in person or electronically.
Establish Clear Policies About Expectations of Privacy in the Workplace
Investigators may need to examine communications and data on company computers, cell phones, email systems and other electronic archives while investigating claims. Organizations should keep privacy laws in mind while formulating policies for the use of computers and electronic devices for work and for accessing organization networks and databases.
These policies should define in detail what types of communications on the organization’s systems may be monitored. They should also make clear that even if an employee is using an employer’s laptop at home, the laptop, email and other software and apps on it are still the employer’s property and subject to monitoring.
Open Up Communication Channels
It is beneficial to let employees know whom to contact within the organization when they have questions and concerns about workplace policies and when they experience or witness what they believe to be inappropriate conduct. That contact person may be an HR professional, the employee’s manager or supervisor, an ombudsman or another resource. Whoever it is, the contact person or people should be prominently identified in employee handbooks and other materials.
Having a contact to serve as a reliable source of information can help alleviate employees’ anxiety and bring clarity on how to respond in uncomfortable situations. The contact should also make sure to alert management to potential workplace problems so that the problems can be dealt with before they go beyond the workplace and turn into lawsuits. Quickly organizing a thorough investigation is usually a good idea.
Address Performance Issues as Soon as They Arise
Bullying, withholding essential information and other unprofessional conduct can be indicative of a job performance issue. Looking into and promptly addressing any such issues is as important in remote workplaces as it is in traditional work settings.
The pandemic has led to a big increase in anxiety and depression. These feelings can affect people’s ability to perform their jobs and may also underlie inappropriate workplace conduct. While employers should not try to be doctors, asking why someone is having difficulties completing assignments or is acting in an unprofessional manner can allow managers and supervisors to help the employee and address performance issues.
For example, managers may ask, “I’ve noticed that you’re not communicating with me or responding to my emails. The expectation is that you will do so. How can I help you do that?”
An open-ended question such as this invites the employee to let their manager, HR representative or other person know whether there is a problem and what the problem is. It could be a matter of communication methods, or there could be an indication that an employee has a disability that impacts their ability to do their job. In this latter scenario, discussing a reasonable accommodation is appropriate. Last, there may be a health issue or a family medical issue that warrants paid or Family and Medical Leave Act leave.
From a risk perspective, however, it is not advisable for managers to address health-related issues on their own. If an employee raises a red flag about a disability or medical issue, management needs to work together with HR to take legally compliant steps toward a resolution.
In these changing times, as more employees work remotely, organizations that put strong policies in place and take other steps to stop issues associated with remote work before they occur may be able to reduce complaints and the need for challenging workplace investigations.
01 October 2021
Category
HR News Article