By Anne Cullen

Law360 (November 13, 2020, 5:12 PM EST ) Telework is here to stay, and cringeworthy Zoom blunders probably are too. But beyond the obvious gaffes, experts say that employers need to be just as worried about the more subtle ways harassment and discrimination are creeping into virtual workspaces.

While most problematic incidents aren't as overt as when legal analyst Jeffrey Toobin reportedly began masturbating during a Zoom call with colleagues thinking he was off-camera —  an episode that recently got him fired from The New Yorker — experts say workers are facing discrimination, bullying and harassment in online gathering spaces, just as they did in the conference room. 

"We have, perhaps not surprisingly, seen a dramatic spike in calls with concerns about online misconduct and disrespect," said Philippe Weiss, head of Seyfarth Shaw LLP's employer compliance arm Seyfarth Shaw at Work.

Littler Mendelson principal Cindy-Ann L. Thomas, co-head of the firm's equal employment opportunity and diversity practice, added that discrimination is surfacing in unprecedented ways online. "Bias is popping up in new ways that we didn't have before," she said.

As businesses scramble to curb online misconduct, here are four ways teleconferencing can lead to unlawful harassment and discrimination, and some tips for staving off problems before they become a legal liability.

Mockery Blooms in Side-Chats

Unlike the traditional conference room gatherings, remote meetings generally mean workers are homed in on a grid of just their colleagues' faces for the duration of the event, a situation that Seyfarth Shaw compliance expert Weiss said can give rise to inappropriate remarks.

"Using videoconferencing and Zoom, it almost lends itself to giving people a platform to be offensive," Weiss said. Users can feel bolder behind a digital buffer, and combined with the fact that they're staring at people's faces, he said that can often lead to disrespect.

Weiss has heard multiple requests from employers about how to address a situation in which workers are using a side chat during a remote meeting to make fun of the way their colleagues look on screen. "We're seeing all kinds of comments on physical appearance and jokes and nicknames based on physical appearance," he said.

Weiss has tackled incidents in which people were dubbing their colleagues, "the nostril" or "the forehead" based on how they appeared on screen, or were physically ranking their co-workers, including one situation in which people put their colleagues into categories of "close-up" or "camera off," meaning they wanted to see more of that person or less of them.

A similar inappropriate game Weiss has seen was styled, "face for Zoom" or "face for radio."

He and other compliance gurus emphasized that the best way employers can stymie this behavior is by updating their policies and guidelines to acknowledge their new work environment, and the way online interactions can be problematic.

"Surprisingly, a lot of companies, even some market leaders, haven't really updated their policies and their guidelines to reflect where we are today," Weiss said.

Weiss also made clear that an immediate response is key, and he said company leaders should train front-line supervisors and their team members on best practices for calling out the behavior on the spot.

"It's really critical managers who are sometimes privy to these communications or made aware of them know what to do and what to say when they do become aware," Weiss said. He added it's equally important that bystanders are trained up to identify and address this conduct too.

"If people don't have the right tools, don't have the right response, it can be very dangerous," Weiss said, as he explained that the behavior could escalate, or a well-intentioned response could go too far.

Working with managers and employees on mantras or go-to responses to off-color remarks can be very effective at nipping misconduct in the bud, Weiss said.

Snipes About Tech Literacy Evince Age Bias

Critiques about an older worker's ability to use the technology, or how they use it, can be age discrimination, experts said.

"The whole issue of how comfortable people are with tech, that connects to comments we have been addressing related to age," Weiss said, pointing to instances he'd seen where workers called someone a "dinosaur" for struggling with technology.

While people often defend their actions by saying it's a joke, Ballard Spahr LLP labor and employment partner Louis Chodoff said that excuse won't fly in the courts and he said employers should be clear that it doesn't fly at work either.

"Just because you add a happy face or an 'LOL' after an email you're sending to somebody about 'you can't teach an old dog new tricks' with technology and things like that, there's no happy face defense to these cases," Chodoff said.

Zoom Decor Giving Employers Nonstop Headaches

Employment lawyers say what's visible over a colleague's shoulder during a teleconference has spurred a cascade of questions and concerns, with many company leaders seeking advice on how to tackle tensions over religious icons, political imagery or other personal items on display.

"There are some obvious ground rules but they're not obvious to everyone," said Duane Morris LLP employment partner Jonathan Segal, who runs the firm's human resources training institute.

Segal said a simple piece of advice is to have employees view their Zoom backdrop as they would their in-office desk, though he noted he's getting regular calls about gray areas that are thornier to unravel.

For example, he said a symbol of someone's religious faith on the wall behind them is absolutely fine, but if that person is overloading their Zoom tile with this imagery to potentially send a message, it may be smart to ask them to readjust. As in this example, he said situations should always be evaluated on a case-by-case basis.

In the political sphere, experts say employers are constantly running into trouble trying to set out a clear policy that encourages healthy discussion and expression, without crossing any lines.

"You can still create a hostile work environment from home if it's in the Zoom tile," said Littler Mendelson's Thomas.

In situations where an employee has, for instance, a confederate flag in the background that may be against company policy or create a hostile environment for other attendees, Thomas suggested employers make clear they're not asking a worker to redecorate, just to reposition their laptop screen.

"It may be that simple," she said. There are few other tactics Thomas suggested employers can use to avoid these types of disputes, for one, realizing that not all "circle backs" or "quick meetings" need to be on camera.

"There are a lot of variables as to when and when not to mandate a camera, and it's a balancing act," she said. Thomas noted that employers could also mandate a background for their workers to use on Zoom or any other teleconferencing technology.

When setting out a policy, Thomas emphasized that consistency is key to avoiding legal liability. "As long as you don't cherry pick for what is OK and what is not OK, then you're probably fine legally," she said.

But she warned that bright-line policies may not be the best method for embracing inclusivity and diversity in the workplace. "Their members may wonder if they are truly dedicated to meaningful diversity and inclusion effort when they don't allow, for instance, items that speak to social justice movements in a Zoom tile," she said.

To strike the best possible balance, Thomas advised that these situations should always be handled "delicately," based on the specific context.

Stereotypes Deny Women a Seat at the Virtual Table

Long before the global health crisis, women have been penalized in the workplace based on the perception that they have more responsibilities at home than their male counterparts, and experts warn that this type of bias is only exacerbated when women are clocking in remotely.

Littler Mendelson's Thomas said this new age of telework has made parenthood far more visible to employers. "Household and childrearing realities are in full focus, literally, in a way that wasn't pre-COVID," she said.

Women who are suddenly seen as caregivers — whether because a sick family member was heard on the phone or a child passed through a Zoom screen — can be excluded from teleconferences or passed over for assignments because of this gender bias, according to Ballard Spahr's Chodoff, who said he's seen the disparity in action.

"Managers or supervisors have inappropriately assumed that the females working at home are not able to do X, Y and Z, or not able to attend things and maybe they're left out of certain meetings because of the discriminatory perception that they're the ones dealing with children at home," Chodoff said.

Thomas also added that there are double-standards at play, as fathers whose children surface in a work context don't always face the same work penalties. "Let's face it, there is data out there that we judge and assess women differently from men," Thomas said.

Employers need to be on alert about the ways these judgments can manifest in telework and disfavor women, Thomas said, recommending that company leaders ensure they have these types of real-world examples and specific situations included in their anti-discrimination guidance and policies.

"Make sure they include those new components in the conversation," she said.

--Additional reporting by Emma Cueto and Hailey Konnath. Editing by Haylee Pearl.

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