Sexual Harassment in the Remote Workplace

In this new era of remote working, employers may think that the risk of sexual harassment is no longer a major concern, and therefore, prevention training should not be a high priority. Unfortunately, this reasoning relies on misconceptions about harassment and can lead to serious problems for an employer, including challenging employee relations issues, disruption of business operations, embarrassing news coverage that can damage an organization’s brand and bottom line, and costly litigation and liability under federal and state anti-harassment laws.

The reality is that employees communicating electronically or virtually are still capable of harassing one another, and employers are still responsible for ensuring a professional work environment free from discrimination and harassment. News reports of shocking behavior by employees on video conferences[1] and the recent trend of “Zoom-bombing”[2] illustrate how video meetings can become a vehicle for lewdness, taunting and other forms of abuse.

Best Practices
To avoid complaints of harassment and other problems that can result from a too-relaxed, work-from-home culture, employers are advised to regularly remind employees about workplace expectations, such as attire and demeanor during video calls, and to take appropriate steps to ensure that video calls are professional and secure.[3]

Moreover, harassment prevention training is still critically important, and in some states, mandated by law. Although the forms of sexual harassment may change with the rise of new technologies and new working situations, employees should be trained about the nature of sexual harassment, how to recognize its various forms and report issues, and what options and procedures are available to remedy violations of employee conduct policies.

State Requirements for Harassment Prevention Training
In addition to complying with the state requirements where a company is located, employers must now consider the harassment training requirements that exist wherever their employees are located. Since many employees are working remotely from new locations, employers must carefully track changes in their employees’ remote work locations4.

Harassment training requirements vary widely from state to state and can differ depending on whether the employer is engaged in the public or private sector. Below is a brief summary of twenty-one state regulations, plus those of the District of Columbia, which mandate sexual harassment prevention training for at least some workers5:

California – Employers must provide employees with a poster or fact sheet developed by the state Department of Fair Employment and Housing (“DFEH”), or equivalent information. All employers with five or more employees must provide one hour of sexual harassment and abusive conduct prevention training to nonsupervisory employees, and two hours of such training to supervisors, at least once every two years. The training must be conducted by a trainer or educator with expertise in the prevention of harassment, discrimination, and retaliation. California regulations specify acceptable credentials for trainers. The training must be conducted in a classroom setting and must be interactive. Training must include, among other aspects, information and practical guidance regarding federal and California laws that prohibit sexual harassment; prevention strategies, including practical examples of harassment based on gender identity, gender expression, and sexual orientation; supervisors’ obligation to report; limitations on confidentiality in the complaint/investigation process; resources for victims, such as reporting procedures; and appropriate remedial actions to correct the behavior(s) complained of. Employers must retain a record of all employees’ training for a minimum of two years. Employers may develop their own training modules. The DFEH also provides online training modules.

Connecticut – Under statute and state Commission on Human Rights and Opportunities (“CHRO”) regulations in effect since October 1, 2019, employers with three or more employees must (1) provide new employees with information about the illegality of sexual harassment and remedies available to victims, (2) ensure current employees hired prior to October 1, 2019 have been provided with two hours of training, and (3) provide two hours of training within six months of their start date to new employees hired after October 1, 2019. Employers with fewer than three employees must have provided two hours of training to existing supervisors by October 1, 2020 or within six months to new supervisors. All Connecticut employers must provide supplemental training not less than every ten years. The CHRO regulations require that the training must be interactive and be conducted in a classroom-like setting with a qualified trainer (who may be an employee of the employer or another individual). CHRO encourages employers to maintain training records for at least one year or, if a discriminatory practice complaint has been filed, until the complaint is resolved. CHRO has online training and video available to employers at no cost. Employers who fail to provide the required training are subject to fines of up to $1,000.

Delaware – All employers are required to distribute the Delaware Department of Labor’s Sexual Harassment Notice to each new employee upon commencement of employment (and to existing employees hired prior to January 1, 2019). The state’s Discrimination in Employment Act applies to employers with four or more employees. Employers with fifty or more employees in Delaware must provide interactive sexual harassment training that must be conducted within one year of the hire date, and existing employees must receive training every two years. Training must cover (1) the illegality of sexual harassment, (2) the definition of sexual harassment, including examples, (3) legal remedies and the complaint process, (4) instructions on how to contact the Delaware DOL, and (5) the legal prohibition against retaliation. Within one year of their date of hire or promotion to the supervisory position, new supervisors must receive additional interactive training that includes specific responsibility as to prevention and correction of sexual harassment, as well as instruction that retaliation is prohibited and unlawful. Employee and supervisor training must be repeated every two years.

District of Columbia – Under the Tipped Wage Workers Fairness Act of 2018, DC employers of tipped workers must train all their employees about how to respond to sexual harassment by co-workers, managers and patrons. New employees must be trained within 90 days of hire, while existing employees must be trained at least once every two years. Employee training may be in-person or online; manager training must be in-person.

Hawaii – Under the state’s Administrative Rules, employers in Hawaii are directed by the Hawaii Civil Rights Commission to “affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.”

Illinois – Every employer is required to provide all employees with annual sexual harassment prevention training that complies with Section 2-109 of the Illinois Human Rights Act (the “IHRA”). Restaurants and bars are required to provide supplemental training that complies with Section 2-110 of the IHRA. The minimum training must include (1) an explanation of sexual harassment, (2) examples of such conduct, (3) a summary of federal and state statutory provisions concerning sexual harassment, including available remedies, (4) a summary of the employer’s responsibilities for preventing, investigating, and correcting sexual harassment. The state developed a model sexual harassment prevention training program, which is available online at no cost. Employers must either use the model program or establish their own programs that meet or exceed the minimum standards of the model program. Employers are to keep a record of training compliance and have it available for IDHR inspection upon request. Civil penalties for non-compliance with the training and record keeping requirements range from $500 – $3000 for employers of fewer than four employees and from $1,000 – $5,000 for employers with four or more employees.

Kansas – Employees and interns of government agencies must take annual sexual harassment training. Although there are no requirements to provide sexual harassment training as to private sector employees, the state Human Rights Commission offers a free online harassment prevention training course with certification of completion, which private-sector employers may find helpful.

Kentucky – State employees must receive sexual harassment training once every two years. The Kentucky Civil Rights Act generally applies to employers with eight or more employees, but does not mandate sexual harassment training for private sector employees.

Louisiana – State employees must receive one hour of sexual harassment training each year, and supervisors of state employees must receive additional training. Louisiana does not presently mandate sexual harassment training as to private sector employees.

Maine – All employers with fifteen or more employees must provide sexual harassment training to all employees within one year of their hire. Training must include, among other aspects, (1) the illegality of sexual harassment, (2) a description of sexual harassment under both the Maine Human Rights Law and federal law, including examples, and (3) a description of the complaint process and protection against retaliation. Employers must conduct additional training for supervisory and managerial employees, to include the specific responsibilities that supervisors and managers must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints. Maine does not specifically require interactive training, but notes that interactive training is considered to be the most effective. Employers in Maine are required to maintain records of sexual harassment training for at least three years and are subject to fines between $1,000 – $5,000 for violations of the mandatory training requirements.

Massachusetts – Employers with six or more employees are required by law to adopt a written policy against sexual harassment. The policy must include a notice to employees that sexual harassment is unlawful and that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment. (The Massachusetts Commission Against Discrimination (“MCAD”) has prepared a model sexual harassment policy and poster. Proposed legislation to require that employers provide sexual harassment prevention training and certify compliance is presently pending in the Massachusetts legislature (Bill HD.1000 and Bill SD.416). The Massachusetts law prohibiting discrimination and harassment in employment encourages employers to conduct education and training programs on sexual harassment for all employees on a regular basis, and MCAD’s guidelines advise employers to conduct additional training for supervisory and managerial employees, which should address their specific responsibilities and steps they should take to ensure immediate and appropriate corrective action in addressing harassment complaints. MCAD notes that an employer’s commitment to providing anti-harassment training to its workforce may be a factor in determining liability or the appropriate remedy. MCAD offers a variety of sexual harassment training programs for employers.

Mississippi – By executive order, all state employees must take an online sexual harassment prevention training course. The state does not require sexual harassment training for private sector employees.

Nevada – State employees and employees of state-sponsored organizations (such as the university system) must receive sexual harassment prevention training within six months of starting work and thereafter every two years. Nevada does not require training for private sector employees.

New Jersey – State employees and supervisors are required to take New Jersey Prohibiting Discrimination in the Workplace Training. Sexual harassment prevention training is not yet specifically required for private sector employees. (Proposed legislation requiring restaurant employees to receive periodic sexual harassment training is presently pending in the NJ legislature.) Nevertheless, New Jersey employers are strongly advised to conduct such training, as courts in the state consider failure to provide sexual harassment training an aspect of negligence in preventing sexual harassment.

New York – Every employer in New York state is required to provide sexual harassment prevention training annually to all employees working in New York for any period of time during the year. The training is to be conducted “as soon as possible” and must be (1) interactive, (2) include an explanation of sexual harassment, (3) include examples of such conduct, (4) include information concerning the federal and state statutes concerning sexual harassment and the remedies available to victims, (5) include information about right of redress and the available means of filing complaints, (6) include information about conduct by superiors and their additional responsibilities. NY recommends but does not require a live trainer. Employers must either use the model sexual harassment training program developed by the NY Division of Human Rights and Department of Labor, or else develop a program that meets or exceeds the minimum requirements of the model program, which is available online, along with links to pertinent videos.

New York City’s Local Law 96 also requires employers with fifteen or more employees to conduct annual sexual harassment prevention training, the content of which generally overlaps with the State requirements. Training that satisfies the NYC requirement is available online with a certificate of completion.

North Carolina – Private sector employers are not yet required to provide sexual harassment prevention training. NC state agencies are required to create an unlawful workplace harassment plan, which includes implementation of harassment training.

Pennsylvania – Private sector employers are not explicitly required to provide sexual harassment prevention training. State employees must complete an online harassment training course.

Tennessee – State employees must receive sexual harassment training. There is no explicit training requirement for private sector employees.

Texas – Chapter 21 of the Texas Labor Code, prohibiting sexual harassment, applies to private employers with fifteen or more employees, and to all state and local governmental entities regardless of how many employees they have. State employees are required to receive sexual harassment prevention training conforming to Sec.21.010 of the Texas Labor Code. Private sector employers are not required to provide such training; however, the Texas Workforce Commission encourages employers to take steps to prevent sexual harassment from occurring, noting that prevention is the best tool to eliminate sexual harassment in the workplace.

Utah – State employees are required to receive sexual harassment prevention training conforming to Utah Admin. Code Rule R477-15-6 at the time of hire and at least once every two years. No specific training is required for private sector employees.

Virginia – Private sector employers in Virginia are not explicitly required to provide sexual harassment prevention training. Employees of the legislative branch and new General Assembly members must complete sexual harassment training within 90 days of commencing or recommencing employment and thereafter once every two years.

Washington – State employees must complete sexual harassment prevention training. Training for private sector employees is strongly encouraged by the guidance and Best Practices issued by Washington State Human Rights Commission (“HRC”) guidance and Best Practices). Effective January 1, 2021, every hotel, motel, retail, or security guard entity, or property services contractor, who employs an employee, must (1) adopt a sexual harassment policy, (2) provide mandatory training to managers, supervisors and employees to prevent sexual assault, discrimination and sexual harassment and educate the workforce regarding protection for employees who report violations; (3) provide a list of resources for employees to include, at a minimum, contact information for EEOC, HRC and local advocacy groups; and (4) provide a panic button to each employee.

The following states recommend, but do not presently require, training:

• Colorado
• Idaho
• Nebraska
• Ohio
• Oregon
• Rhode Island
• South Dakota
• Vermont
• West Virginia
• Wisconsin

The following states do not presently require training by either public or private sector employers:

• Alabama
• Alaska
• Arizona
• Arkansas
• Florida
• Georgia
• Indiana
• Iowa
• Maryland
• Michigan
• Minnesota
• Missouri
• Montana
• New Hampshire
• New Mexico
• North Dakota
• Oklahoma
• South Carolina
• Wyoming

Next Steps for Employers
Employers should update current policies and employee handbook provisions (or consider adopting new ones) to clarify requirements and expectations regarding professionalism standards, employee conduct, and communications in the age of remote work. Also, we recommend that all employers provide sexual harassment prevention training, regardless of whether such training is mandatory in your location.

If you would like to discuss harassment prevention training or related sexual harassment policies, please contact Trish Lantzy at [email protected] or 804-683-1737.

A member of our Washington D.C.-based team, Patricia Lantzy is a highly skilled labor and employment attorney with more than 25 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.

[1]https://nypost.com/2020/12/15/more-details-emerge-in-jeffrey-toobin-zoom-masturbation-fiasco/

[2] https://www.fbi.gov/contact-us/field-offices/boston/news/press-releases/fbi-warns-of-teleconferencing-and-online-classroom-hijacking-during-covid-19-pandemic

[3] https://blog.zoom.us/keep-uninvited-guests-out-of-your-zoom-event/

4 Remote-working employees who permanently change their primary work location trigger multiple other issues for their employers. This topic will be covered in a forthcoming blog post.

5 This information is meant to provide a snapshot for general information purposes only, and is not a complete recitation of the various states’ requirements. Information contained in this article may have changed since the article was posted.