The COVID-19 pandemic has transformed the traditional workplace, with many employees now working
remotely or in hybrid arrangements. This blurring of the lines between work and personal life can create
challenges for employers, who need to ensure that their employees are protected from harassment and
discrimination, regardless of where the work is being performed.
Federal and state laws prohibit harassment and discrimination in the workplace. However, the definition of
“workplace” can be complicated when employees are working outside of the traditional office setting. In
general, courts will consider the following factors when determining whether conduct that occurs outside
of the office is actionable:
- Whether the conduct is related to the employee’s job: For example, if a supervisor harasses an
employee over text message about work-related matters, the conduct may be considered
actionable even if it occurs outside of the office. - Whether the conduct occurs during work hours: For example, if an employee is sexually
assaulted by a coworker at a company-sponsored event, the conduct may be considered
actionable even if it occurs outside of the office and outside of work hours. - Whether the conduct is severe or pervasive enough to create a hostile work environment: For
example, if a coworker makes one off-color joke about an employee, the conduct may not be
considered actionable. However, if the coworker makes repeated and unwelcome jokes about the
employee, the conduct may be considered actionable.
In some cases, employers may be held liable for harassment or discrimination that occurs outside of the
office if the conduct has a negative impact on the employee’s work environment. For example, if a
supervisor harasses an employee over text message and the harassment creates a hostile work
environment that interferes with the employee’s ability to do their job, the employer may be held liable for
the supervisor’s conduct.
Employers can take steps to reduce their risk of liability for harassment and discrimination that occurs
outside of the office. These steps include:
- Having clear policies in place that prohibit harassment and discrimination: Employers should have clear and concise policies in place that prohibit harassment and discrimination. These policies should be distributed to all employees and should be easily accessible to employees.
- Providing training to employees on these policies: Employers should provide training to all employees on the company’s harassment and discrimination policies. This training should be interactive and should allow employees to ask questions.
- Investigating all complaints of harassment and discrimination promptly and thoroughly: Employers should investigate all complaints of harassment and discrimination promptly and thoroughly. Investigations should be conducted by a neutral party and should be documented.
- Taking appropriate disciplinary action against employees who violate the policies: Employers should take appropriate disciplinary action against employees who violate the company’s harassment and discrimination policies. This action may include, but is not limited to, verbal warnings, written warnings, suspensions, and terminations of employment.
Employers should also be aware of the specific laws that apply in their jurisdiction. Some states have
laws that extend the definition of “workplace” more broadly than federal law. For example, California law
holds employers liable for harassment that occurs outside of the workplace if the conduct is related to the
employee’s job or if the employer knew or should have known about the conduct and failed to take action
to stop it.
By taking these steps, employers can help to protect their employees from harassment and
discrimination, regardless of where the work is being performed.
Recommendations for Employers Navigating the New Workplace
In addition to the steps outlined above, employers may also want to consider the following
recommendations for navigating the new workplace:
- Maintain detailed policies that outline expectations of conduct, the definition of the workplace, and report and investigating allegations of wrongful conduct.
- Provide robust training for employees and managers that addresses not only how to address, and report conduct but also emphasizes that the employer’s policies do not just apply within the traditional workplace location.
- Ensure that employees understand that conduct that takes place outside of the traditional workplace — such as cell phone communications and in off-hours social settings — can still fall under the employer’s workplace conduct policies.
- Check local discrimination and harassment training requirements under applicable state and local laws.
The changing workplace presents new challenges for employers in terms of protecting their employees
from harassment and discrimination. With more employees working remotely or in hybrid arrangements,
the lines between work and personal life are increasingly blurred. This can make it difficult for employers
to determine when conduct that occurs outside of the traditional office setting is actionable.
To help employers navigate the new workplace, here are some additional tips:
- Keep your policies up to date. State and federal laws are constantly evolving, so it is important to review your policies regularly to ensure that they are complying.
- Provide regular training to employees. Employees should be aware of the company’s policies and how to report harassment and discrimination. Training should be interactive and should allow employees to ask questions.
- Investigate all complaints promptly and thoroughly. When a complaint is made, it is important to investigate it promptly and thoroughly. Investigations should be conducted by a neutral party and should be documented.
- Take appropriate disciplinary action. If an investigation finds that harassment or discrimination has occurred, the employer should take appropriate disciplinary action against the employee. This may include, but is not limited to, verbal warnings, written warnings, suspensions, and terminations of employment.
By taking these steps, employers can help to create a workplace that is free from harassment and
discrimination.
In addition to the tips above, employers may also want to consider the following:
- Set clear expectations for employee behavior. Employees should know what is and is not acceptable behavior in the workplace, both inside and outside of the office.
- Create a culture of respect. Employers should create a workplace where employees feel comfortable reporting harassment and discrimination.
- Encourage employees to speak up. Employees should feel comfortable speaking up if they witness or experience harassment or discrimination.
By following these tips, employers can help to create a workplace where all employees feel safe and
respected.