Employers across the US are requiring employees to return to the brick and mortar workplace as COVID cases drop, and are looking forward to having employees work together again face-to-face. But employers beware: employees have had little in-person interaction with their colleagues over the past two years, and some employees who were onboarded during the pandemic have only met their coworkers virtually. Employees returning in-person may be rusty when it comes to interacting with others in the same physical space, increasing the risk that lines will be crossed into inappropriate or unlawful behavior. What should employers do as employees return to the office to try to keep claims of discrimination and harassment to a minimum?
Update the company’s anti-discrimination and anti-harassment policies
With a focus on health and safety measures such as mask mandates and vaccine policies for the last two years, updating anti-discrimination and anti-harassment policies may not have been front of mind. But employers should review and update these policies now to ensure they comply with any newer laws in the jurisdictions where they have employees-such as Illinois’ Public Act 102-0419, effective January 1, 2022, which specifies that disability discrimination in Illinois now includes discrimination against an individual because of their association with a person with a disability. Updated policies should be distributed to employees, who should be required to acknowledge in writing that they have received and understand them.
Train employees that the company prohibits discrimination and harassment–and requires respect
Employers should also train employees on the company’s anti-discrimination and anti-harassment policies-especially before employees who have been working remotely for months or years return-to increase awareness of what is and is not appropriate workplace behavior. In one study, employees who received sexual harassment training were more likely to indicate that unwanted sexual gestures, touching, and pressure for dates are sexual harassment. Awareness of what is considered unacceptable behavior can help employees think twice before acting, and training showing specific examples of discrimination and harassment-such as actors portraying behavior that could be discrimination or harassment-may help employees understand behavioral boundaries.
Employers should ensure the training covers “to the moment issues” related to discrimination and harassment that may impact the workplace. For example, on March 18, 2021, the US House of Representatives passed the Creating a Respectful and Open World for Natural Hair Act (CROWN Act) which would prohibit discrimination based upon hairstyles in employment (as well as in public accommodations, housing, and other venues). Several states already have similar laws in place, including California, New York, Washington and Delaware. Even if the CROWN Act stalls at the federal level, training employees to respect each other-including each other’s hairstyles-can reduce complaints of discrimination.
Another example is microaggressions in the workplace. A recent Future Forum study indicated that only 3% of Black professional workers (compared with 21% of white professional workers) wanted to return to the office full time post-pandemic, after finding they faced fewer microaggressions from colleagues while working remotely. Aside from diversity and inclusion training (which many employers offer to employees), training all employees on the importance of respect in the workplace can keep all employees feeling welcome, included and valuable-whether they’re working remotely or in-person.
Employers should also ensure the training:
- Explains the company’s structure for reporting concerns of discrimination or harassment
- Emphasizes that the company prohibits retaliation for making reports or participating in workplace investigations of alleged harassment or discrimination
- Describes the steps the company takes when handling complaints, and
- Reminds employees they are subject to discipline for violation of the company’s policies relating to harassment, discrimination, or retaliation.
Some jurisdictions, including California, Connecticut, Illinois, Maine, New York State and New York City require employers to train employees on workplace harassment. But even if training is not required, employers should train employees before they return to the office-and regularly thereafter-to remind employees what inappropriate behavior looks like, how to report it, and the consequences for not following company policy.
Make sure the company’s social media policy clearly prohibits harassment, discrimination, and retaliation
Though some employers may have thought the lack of in-person contact between employees during the pandemic would diminish harassment or discrimination, research shows otherwise. According to one recent survey by Project Include, 25% of respondents said they experienced an increase in gender-based harassment while working remotely during the pandemic, 23% of respondents 50 years and older reported increased age-related discrimination, and 10% said they experienced an increase in hostility based on their race or ethnicity.
And a return to in-person working does not mean employees will substitute going into the office for leaving comments on social media platforms, meaning the danger of co-worker harassment, discrimination, and retaliation on social media will remain.
To combat claims of harassment and discrimination between employees on social media, employers should ensure they have robust social media policies in place that:
- Remind employees to be fair and courteous to coworkers, customers, suppliers or third parties working on behalf of the company
- Require employee use of any social media platform to comply with all company policies prohibiting discrimination, harassment, and retaliation
- Reiterate that consequences for inappropriate postings such as discriminatory remarks, harassment, or similar inappropriate or unlawful conduct is not tolerated by the company and may subject employees to disciplinary action (including termination)
- Provide clear direction on how to report concerns of social media harassment or discrimination, and remind employees that they will not be retaliated against for reporting incidents or participating in a related investigation
Ensure “front line” employees are familiar with the company’s investigation strategy
As employees return to the office, employers may experience an uptick in reports of harassment and discrimination-which would lead to an uptick in investigations. Conducting impartial, thorough and well-documented investigations can not only support a strong company culture of ethics and compliance, but can also identify root causes and “lessons to be learned” to allow the company to implement preventative measures to avoid similar incidents in the future. This, in turn, will help limit employer liability.
Employers should train those who could be on the front line of receiving complaints and conducting investigations (including managers, supervisors and HR) on the company’s investigation strategy, including:
- The first steps to take when an allegation of harassment or discrimination is raised, including any required “triage”
- Best practices for communicating with employees who are involved in an investigation
- How to plan and run a thorough and confidential investigation
- The company’s policy for drafting and retaining records related to an investigation
- Tips for conducting interviews
- How to conclude an investigation, including requirements for any final reports and recommendations, and the best ways to communicate and implement disciplinary measures
Though employers may be eager to bring employees back to the office, they should train employees on company policy and what is and is not appropriate behavior to keep harassment and discrimination claims at bay. Contact your Baker McKenzie employment attorney for assistance with returning to the workplace, and for all of your employment needs.