What constitutes harassment in the virtual workplace?

What do we mean when we talk about harassment at work? The truth is that the definition has evolved – in no small part thanks to the COVID-19 pandemic.

Once, our idea of harassment in the workplace focused on verbal, in-person bullying, blatant physical or sexual abuse, and unwanted, unwarranted attention. Now, as the world pivots to a more hybrid work model and employees continue to work from their homes, harassment has taken on another dimension. A recent poll taken by UKG found that harassment and bullying were the most concerning areas of misconduct for HR professionals, with 76% of leaders worried about both online and in-person abuse.

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Harassment in a hybrid working model may be more subtle but make no mistake: it’s just as toxic and just as illegal. HRD recently spoke to Stuart Rudner, employment lawyer and mediator and founder of Rudner Law, who talked us through the legal pressure points of online harassment.

What constitutes harassment in the virtual workplace?

“The classic definition of harassment, as seen in Ontario’s Occupational Health and Safety Act, is “engaging in a course of vexatious comment or conduct against a person in a workplace that is known or ought reasonably to be known to be unwelcome”. Now, as people continue to work from home, harassment has taken on an online form – namely, social media abuse and electronic bullying. For instance, we’ve seen a rise in toxic WhatsApp messaging, bullying posts on a colleague’s Facebook wall etc – mainly because that’s how we communicate now. We’re relying more on digital interactions which has inevitably led to a spike in digital harassment.”

What are some examples of online harassment?

“As I often say, there is no law against being a jerk, and there is also a significant difference between managing and bullying. Not every negative interaction at work is actionable, and some managers have a less “friendly” style than others.

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“If an employee has a bad experience in a video call – perhaps their manager is aggressive – if it’s a one-off, then it’s not harassment. However, if it continues and becomes a pattern, then it’s harassment. In remote work scenarios, many employers are relying on internal messaging systems to communicate with employees, which tend to be very informal. This casual tone leaves room for interpretation in comments and conversations – causing some people to commit forms of unintentional electronic harassment. Even excluding people from meetings or events can constitute bullying.

What are the legal ramifications of online harassment?

“Harassment, whether it be in person or online, is governed by provincial Occupational Health and Safety legislation (or federal for the small number of workers that are federally regulated). Employers have a duty to make all reasonable efforts to provide a safe work environment, free from any form of abuse. In remote work scenarios, an employee’s home office is their workplace – and the employer must still provide a safe work environment Even if the conduct misconduct takes place away from the office, is online, or is perpetrated by a third party like a customer or supplier, the employer’s duties are triggered. Failing to investigate properly will expose the organization to liability.”

How should HR respond to allegations of online harassment?

“Before any allegations arise, employers must update their policies to make sure that they refer to not only harassment but harassment in all of its forms, including digital. This is mandatory in Ontario and many other jurisdictions – so internal reporting mechanisms must be easy to use and up to date.

“Employers have a positive duty to investigate suspected harassment, even if there is no formal complaint, if one of the people involved resigns, or if the complainant does not want them to. An investigation must be fair and impartial. The investigator’s job is to decide, on a balance of probabilities, whether there was harassment or not; concluding that it was a “he said she said” scenario, without reaching a conclusion, is unacceptable.”

This feature was released as part of UKG’s exclusive magazine. Discover what HR teams can expect from 2022 and beyond and learn strategies for the new era of work here.