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Law360 (April 27, 2020, 1:32 PM EDT )
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| Ally Coll |
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| Shea Holman |
When combined with the 14.6% of workers who were already working from home before the pandemic, the survey findings estimate that nearly half of the total workforce now consists of remote workers.[3]
While this shift to remote work could create a number of benefits for employees, such as more flexible schedules and changes in gender norms, many workers may find themselves struggling to know their rights during this challenging time.[4] Without the brick-and-mortar workplaces we are used to going into every day to provide stability, it can be even more difficult to navigate challenging workplace situations, particularly when it comes to instances of sexual harassment.
COVID-19 is affecting workers differently, and exposing inequalities in our existing labor and employment systems. Here are some steps employers can take to ensure they are keeping all of their employees safe, productive and empowered during these uncertain times.
Understand that harassment still occurs even when employees are not physically at work.
Workplace harassment does not disappear when employees stop working physically alongside coworkers in brick-and-mortar locations. In fact, workers who tend to work in more isolated spaces, including domestic care, hotel and agricultural workers, are more likely to experience sexual harassment and assault.[5]
Isolation leaves workers more vulnerable to abusers, since there are likely few witnesses.[6] As a result, it is more important now than ever before that employees feel they can count on workplace leaders to cultivate safe and healthy remote workplaces.
According to a recent article by Robyn Swirling, founder of Works in Progress, a nonprofit organization that addresses sexual- and gender-based harassment in progressive workplaces, managers and supervisors need to "pay close attention to which voices they are hearing from and which ones they are not," since employees often withdraw from work after becoming a target of sexual harassment.[7] Rather than assuming an employee is just less focused during the pandemic, employers should understand that the employee may be trying to cope with the harmful actions of his or her co-workers.[8]
Employers should also provide employees with multiple reporting channels, particularly online options as employees no longer have the ability to report in person. Companies like Google Inc. now offer their workers multiple different ways of reporting. While some of these channels are in person, Google also allows employees to report via the company's Respect@ team email or anonymously via the company's compliance helpline, which is publicly available and can receive reports online or via phone.[9]
Workplaces can also utilize new innovative apps, artificial intelligence and online tools that allow employees to report harassment anonymously and confidentially. One of these apps, AllVoices, launched a public-facing tool that allows employees, freelancers, contractors, vendors and others to anonymously report any issue to a company even if it is not signed up on the platform.[10]
When it comes to the investigation process, employers should strive to keep current sexual harassment investigations on track and continue to treat future investigations in a prompt and transparent manner. The U.S. Equal Employment Opportunity Commission advises employers to balance the need for a timely response with the importance of conducting a thorough and fair investigation that documents all steps taken and ensures that investigators are well trained and objective.[11]
When investigations are delayed, important evidence may be lost or verifying details forgotten.[12] In addition, delaying the process prolongs the trauma for individuals who have already gone through a traumatic experience.[13]
With workplaces racing to make necessary adjustments during the pandemic, there is the concern that cases of sexual harassment will fall by the wayside. Employers need to make sure that complaints of sexual harassment are still treated as seriously as they were before.
Swift yet thorough investigations can still be conducted during this new remote work climate. Employers must remember that even when conducting an investigation remotely, the primary focus should remain on stopping the improper conduct.[14]
Employers should create clear protocols for phone and video interviews, and enforce those processes consistently in each investigation.[15] In order to keep investigations moving forward, employers should consider implementing weekly virtual meetings and status conferences with their investigative team and continue to share updates with both the person reporting harassment and the person about whom the complaint was made.[16]
Ensure that freelancers and contractors know their rights and how to report workplace misconduct remotely.
When the #MeToo movement went viral in 2017, one in 10 American workers were hired as independent contractors.[17] Currently, over 53 million Americans are a part of the freelance economy.[18]
For decades, freelancers and independent contractors have struggled to know their rights when it comes to reporting sexual harassment and workplace misconduct. Now, remote workers are finding themselves in a similar bind.
Although sexual harassment is harmful regardless of whether it takes place in person or online, freelancers and remote workers may find it more difficult to report since they do not have easy access to corporate resources.[19] They may also find it difficult to flag the harassment from a remote work setting, since inappropriate work interactions can be hidden more easily in online platforms that are not being monitored by managers or supervisors.[20]
To address the rise of the gig economy, and the fact that harassment often involves nonemployees, lawmakers are taking steps to ensure that contract workers and other third parties receive training on anti-harassment policies. Effective harassment training can help prevent or reduce sexual harassment in the workplace.[21]
In October 2019, New York City extended protections of its Human Rights Law to nonemployees, including contractors and freelancers.[22] The amended statute requires employers to provide certain independent contractors, freelancers and interns with sexual harassment prevention training.[23]
Illinois passed similar legislation requiring employers to train all employees — including part-time employees, temporary employees and interns — and strongly advised providing training to independent contractors if they work on-site or interact with employees.[24]
On a broader scale, New York is also working to pass legislation that would address the gaps in protections for freelancers. New York City Democratic Councilmember Brad Lander is currently working on passing nondiscrimination legislation that would protect freelancers from workplace discrimination in New York City.[25] If the bill passes as it is currently written, "sexual harassment to a freelancer would be treated the same by the law as it would sexual harassment to a full-time employee."[26]
Leverage existing diversity and inclusion efforts to ensure equality during this challenging time.
Another way employers can lessen the inequalities exposed by COVID-19 is to leverage existing diversity and inclusion efforts. According to the EEOC, sexual harassment is more likely to occur in workplaces that have predominantly male employees — and homogenous workplaces are generally more vulnerable to all forms of harassment.[27]
Some companies have already undertaken unique initiatives meant to increase diversity and understanding in their workforces. One year before the #MeToo movement came onto the scene, Chevron Corp. launched its Men Advocating Real Change program, which engages men in being more active champions for inclusion.[28]
The program now has more than 3,000 participants in 17 locations across 12 countries, about 60% of whom identify as male and 40% of whom identify as female.[29] As a company spokesperson explained in a Fast Company article last year, the program "provides structure to have meaningful conversations about a sensitive topic and is bringing awareness about unconscious biases and exclusive behaviors."[30]
Similarly, MetLife Inc. recently launched a 14-month career development program for high-potential women called Developing Women's Career Experience.[31] The program not only trains women in key leadership skills and increases the sense of urgency around promoting more women, it also trains leaders to be more mindful of potential bias in the review and development process.[32] Since 2015, the company has seen measurable gains in the representation of women in its workforce: More than half of its managers and entry-level workers are now women.[33]
As part of existing diversity and inclusion efforts, companies should also be working to achieve pay equity more now than ever before. The coronavirus has disproportionately impacted women and forced them to bear the brunt of the financial crisis.
American women are more likely to be low-wage and part-time workers than men.[34] In fact, 62% of minimum-wage and lower-wage workers are female.[35] When workplaces shut down because of the virus, these women face a greater risk of income loss.[36]
In addition, most of the front-line workers during this crisis also face a wage gap. Women hold 66% of grocery store jobs, but make only 89% of what men make in the same positions.[37] Even in nursing, where women represent 88% of the workforce, they earn 92% of what their male colleagues do.[38]
Nicole Mason, president and CEO of the Institute for Women's Policy Research, argued in a recent Fortune article that the "pay gap is less money women have in their pockets for basic necessities and less in savings to ride out a crisis like this."[39] A good example of an effort to achieve pay equity can be found in Starbucks Corp., which in 2019 announced it would join with more than 20 other companies to bring its landmark Pay Equity Principles guide to help other workplaces close racial and gender wage gaps.[40]
This worldwide crisis is affecting employers and employees alike in unprecedented ways. Never before has the global workforce seen such a dynamic shift toward remote work.
With thousands of workers now glued to their laptops, it can be difficult to maintain the structures that make our workplaces safe and healthy environments for all employees. As workplaces scramble to set up new remote work practices, they cannot forget that workplace culture still exists, and still matters, even when no one is physically in the office.
Ally Coll is president of The Purple Campaign, a nonprofit organization dedicated to addressing workplace harassment in the #MeToo era.
Shea Holman is a a legal fellow at The Purple Campaign and a third-year law student at the University of Minnesota Law School.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Erik Brynjolfsson et al., (2020). COVID-19 and Remote Work: An Early Look at US Data, 2, https://documentcloud.adobe.com/link/review/?pageNum=2&uri=urn%3Aaaid%3Ascds%3AUS%3A25ef03e6-a4f7-4084-aa25-40807e3d66fa.
[2] Id. at 3.
[3] Id.
[4] Titan M. Alon et al., (2020). The Impact of COVID-19 on Gender Equality. National Bureau of Economic Research, 17-18, https://www.nber.org/papers/w26947.pdf.
[5] Elyse Shaw et al., Sexual Harassment and Assault at Work: Understanding the Costs, Institute for Women's Policy Research (October 15, 2018), https://iwpr.org/iwpr-publications/briefing-paper/sexual-harassment-and-assault-at-work-understanding-the-costs/.
[6] Id.
[7] Robyn Swirling, Sexual Harassment Still Happens When You Work From Home During A Pandemic, Medium (Mar. 17, 2020), https://medium.com/swlh/sexual-harassment-still-happens-when-you-work-from-home-during-a-pandemic-3bba3e230399.
[8] Id.
[9] Google, "Policy on Harassment, Discrimination, Retaliation, Standards of Conduct, and Workplace Concerns (US)," https://services.google.com/fh/files/blogs/policy_workplace_concerns.pdf (last accessed April 21, 2020).
[10] Diane Haithman, AllVoices Harassment Reporting App Raises $3 Million, LOS ANGELES BUSINESS JOURNAL (Feb. 6, 2020), https://labusinessjournal.com/news/2020/feb/06/allvoices-harassment-reporting-app-raises-3-millio/.
[11] Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm (June 2016).
[12] Marie-Hélène Mayer, Managing Workplace Investigations During COVID-19 Pandemic, THE LAWYER'S DAILY (Mar. 26, 2020), https://www.thelawyersdaily.ca/articles/18332.
[13] Sarah Brown, Sexual-Assault Investigations May Be Delayed as Coronavirus Disrupts Colleges, THE CHRONICLE of HIGHER EDUCATION (Mar. 23, 2020), https://www.chronicle.com/article/Sexual-Assault-Investigations/248305.
[14] Baker McKenzie, Creating an Effective Remote Investigations Process (2020), https://events.ethisphere.com/wp-content/uploads/remote-investigations-webinar-presentation.pdf.
[15] Id.
[16] Id.
[17] Contingent and Alternative Employment Arrangements Summary, U.S. Bureau of Labor Statistics, https://www.bls.gov/news.release/conemp.nr0.htm.
[18] Elizabeth King, How Freelancers Are Forced to Fend for Themselves Against Sexual Harassment, Vice (Nov. 2, 2016), https://www.vice.com/en_us/article/vb4m73/how-freelancers-are-forced-to-fend-for-themselves-against-sexual-harassment.
[19] Id.
[20] Robyn Swirling, Sexual Harassment Still Happens When You Work From Home During A Pandemic, Medium (Mar. 17, 2020), https://medium.com/swlh/sexual-harassment-still-happens-when-you-work-from-home-during-a-pandemic-3bba3e230399.
[21] Kathy Gurchiek, Sexual Harassment Prevention Training should Involve Real Conversations, Society for Human Resource Management, https://www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/pages/sexual-harassment-prevention-training-should-involve-real-conversations.aspx.
[22] N.Y.C. Admin. Code §§ 2019-172 (enacted Oct. 13, 2019), https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3331739&GUID=216BE991-%203C48-48E0-A57C-0D06D51C0C29.
[23] New York City Commission on Human Rights, "Protections for Independent Contractors & Freelancers From Discrimination and Harassment," 1 https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3331739&GUID=216BE991-%203C48-48E0-A57C-0D06D51C0C29 (last accessed, Apr. 21, 2020).
[24] Colleen G. DeRosa, The Who, What, and When on Illinois's Mandatory Sexual Harassment Prevention Training, The National Law Review (Feb. 7, 2020), https://www.natlawreview.com/article/who-what-and-when-illinois-s-mandatory-sexual-harassment-prevention-training.
[25] New NYC Law to Protect Freelancers From Discrimination and Harassment Starts Monday, New York City Council (Jan. 13, 2020), https://council.nyc.gov/brad-lander/2020/01/13/new-nyc-law-to-protect-freelancers-from-discrimination-and-harassment-starts-monday/.
[26] Elizabeth King, How Freelancers Are Forced to Fend for Themselves Against Sexual Harassment, Vice (Nov. 2, 2016), https://www.vice.com/en_us/article/vb4m73/how-freelancers-are-forced-to-fend-for-themselves-against-sexual-harassment.
[27] Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm (June 2016).
[28] Lydia Dishman, How This Training Helped Male Executives Confront Their Privilege and Bias, FAST COMPANY, https://www.fastcompany.com/90333824/how-this-training-helped-male-executives-confront-their-privilege-and-bias.
[29] Id.
[30] Id.
[31] MetLife, "Our Workplace," https://www.metlife.com/about-us/global-diversity-inclusion/our-workplace/ (last accessed Apr. 21, 2020).
[32] LEAN IN, "Women in the Workplace," https://wiw-report.s3.amazonaws.com/Women_in_the_Workplace_2019.pdf (last accessed Apr. 21, 2020).
[33] Id. at 18.
[34] Jasmine Tucker & Kayla Patrick, Low-Wage Jobs Are Women's Jobs: The Overrepresentation of Women in Low-Wage Work, National Women's Law Center (Aug. 30, 2017) https://nwlc.org/resources/low-wage-jobs-are-womens-jobs-the-overrepresentation-of-women-in-low-wage-work/.
[35] Jens Manuel Krogstad, More Women Than Men Earn the Federal Minimum Wage, PEW Research Center (May 5, 2014) https://www.pewresearch.org/fact-tank/2014/05/05/more-women-than-men-earn-the-federal-minimum-wage/.
[36] Katica Roy, Why Women Will be Hardest Hit by a Coronavirus-driven Recession, FAST COMPANY (Mar. 20, 2020) https://www.fastcompany.com/90479204/why-women-will-be-hardest-hit-by-a-coronavirus-driven-recession.
[37] Emma Hinchliffe, During the Coronavirus Crisis, Equal Pay is More Important Than Ever, FORTUNE (Mar. 31, 2020) https://fortune.com/2020/03/31/coronavirus-equal-pay-day-gender-pay-gap/.
[38] Id.
[39] Id.
[40] Starbucks, "Starbucks is Partnering With 25 Employers to Close the U.S. Gender Pay Gap," https://stories.starbucks.com/stories/2019/25-companies-join-starbucks-to-end-u-s-gender-pay-gap/ (last accessed Apr. 21, 2020).
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