Workplace Harassment Moves Online: What Does it Mean for Employers and Employees?

Many people were left reeling by the recent revelation that famed author, lawyer, and legal analyst, Jeffrey Toobin was suspended by The New Yorker for masturbating in front of co-workers on a work related Zoom call. Toobin claims that he “thought no one on the Zoom call could see [him]” and “thought [he] had muted the Zoom video.” Twitterverse has given the Toobin incident an unfortunate and fitting label: the Zoom D*ck Incident.

Accidental or not, incidents like Toobin’s are becoming more common in the era of pandemic induced, virtual work. As workers have moved to Zoom, Microsoft Teams and Google Meet, so too has sexual harassment. One employee recently heard her boss engage in a sexually explicit conversation with his partner during a work Zoom meeting. He inadvertently left his microphone on. Other employees have reported their colleagues showing up for video calls nude from the waist down. Still others report that their co-workers are more likely to comment on their physical appearance virtually than in person. Others report being bullied and harassed in the Zoom chat feature during meetings.

What does this mean for employers? Just because your employees are working from home does not mean that your company’s equal employment opportunity policies do not apply. Tweak your regular sexual harassment training to include examples of inappropriate, virtual conduct. Encourage employees to immediately report inappropriate conduct as they would if they were working onsite. Limit one on one video conferences between employees. Make sure that your virtual meetings are secure to prevent “Zoom bombers” (uninvited Zoom participants who hijack meetings and share racist and pornographic material.) Finally, closely monitor your employees’ electronic communications to ensure that company policies are not violated.

What does this mean for employees? Be vigilant. If you see or experience something that makes you uncomfortable, say something. Virginia’s new whistleblower protection law protects employees who report any violation of federal or state law or regulation to a supervisor. Review your employer’s policies on virtual meetings and, if allowed, consider recording the meeting. If you do not need to be on camera, turn your camera off.

Broderick C. Dunn is a partner at Cook Craig & Francuzenko, PLLC. He focuses his practice on business and employment litigation. Follow him on Twitter @broderick_dunn and connect with him on LinkedIn @https://www.linkedin.com/in/broderickdunn.