By: Hannah Louise Johnston
For almost two years, a record number of people have transitioned to working from home. Some industries, such as health care and municipality services, are understandably required to stay on site. Others in the corporate and teaching professions have managed to work remotely for better or worse. This begs the question – does workplace harassment continue beyond the workplace, and where exactly do we draw the line between work and home?
Are Employers Responsible for Off-Site Incidents?
Traditionally, employers in Ontario have a lot of responsibility to keep employees safe and must consider situations that take place outside of work. Bill 168 was introduced in 2009 and requires employers to take precautions if they become aware of, or ought to be reasonably aware of, domestic violence that could injure an employee in the workplace.[1] Prior to the COVID-19 pandemic, employers were required to keep in mind their employee’s home life, so it’s plausible that their harassment policies should consider remote work.
A 2021 decision out of the Quebec Labour Board implies that an employee’s house can function as part of the workplace, where the employer has some responsibility. Here, an Air Canada call centre employee fell down her stairs while on her lunch break and was able to recover damages from her employer.[2] Air Canada argued that once the employee had stepped away from her workspace, they were no longer liable, but the Labour Board disagreed. This incident was treated as if it occurred on the employer’s premises, but it is still unclear whether this rationale would apply to harassment between co-workers in other provinces.
Does Workplace Harassment Still Occur?
Initially, working from home may have offered some relief for anyone who was experiencing workplace harassment. The separation may create some necessary distance for people who were worried about reporting harassment when still working alongside the instigator. It’s understandable that this may offer some relief for past examples that occurred at work, but the sad reality is that, like most things, harassment is carrying over into the online sphere.
Workplace harassment complaints are still made, whether people see their co-workers every day or not. A New York Times (NYT) article from last year confirmed that harassment exists in online platforms. Notably, the “the channels through which remote work occurs — text, phone, video — are often unmonitored, unrecorded or occur outside employer-sponsored platforms”. This can allow harassment to go unnoticed.[3] The article also mentions that working from home eliminates having another co-worker close by as a potential witness. Losing bystanders can make it harder for an employee to feel comfortable reporting a co-worker for harassment.
What the Research Tells Us
In the United Kingdom, Rights of Women reported that 42% of women experiencing sexual harassment at work have experienced some to all of the harassment online, and 23% of women who have experienced sexual harassment reported an increase or escalation while working from home, since the start of lockdown in March 2020.[4] The charity’s website quotes Deeba Syed, the Senior Legal Officer at Rights of Women, saying “women have told us that employers are exploiting the Covid-19 pandemic to delay and frustrate the justice processes for women who do come forward to report harassment.”[5] Remote workers across the world are affected, epically expecting mothers.
A group of Japanese researchers looked at the effects of the COVID-19 pandemic and “maternity harassment.” This is defined as “diverse treatment or harassment in the workplace against women based on pregnancy, childbirth, and requesting or taking childcare leave/family care leave, etc.”[6] 24.8% of pregnant employees surveyed experienced adverse treatment, including unfavorable stay-at-home orders, and being mentally (e.g. sarcastic comments, being ignored, etc.) and physically harassed (forcing you to stand, smoking nearby, etc.).[7] These alarming statistics confirm that harassment occurs outside of the workplace and is significantly impacting pregnant employees.
The problem is not limited to remote workers, as workplace harassment has also increased for those who still report to work in person. Researchers at an academic emergency department of a Midwestern United States hospital studied the impact of the COVID-19 pandemic on workplace violence in the hospital.[8] The frequency of verbal abuse increased from 6.2% of respondents pre/early-pandemic who reported verbal abuse by patients or their visitors every day or two to 12.7% mid/late-pandemic.[9] This 2022 study shows that workplace harassment has increased over the first six months of the pandemic, even for those who already experienced violence at work.
Conclusion
As the Quebec Labour Board held, and other legislation has implied, the workplace can be anywhere that you are working. It is also clear that harassment has not disappeared during the COVID-19 pandemic. With increased vaccination rates, and as more people feel comfortable returning to work, the workplace itself will need to be redefined. More research into the effects of lockdown and stay-at-home orders on everyone’s work life would also be beneficial. As the NYT article mentioned previously stated, “perhaps the most damning element of remote workplace harassment is how woefully unprepared companies are to address it.”[10] Going forward, workplace harassment policies will need to address online harassment through platforms like Slack or Zoom, as long as employees are working remotely.
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We will soon be launching our workplace harassment tool that provides general information on harassment and the investigation process after a complaint is made. If you have experienced workplace harassment and feel your investigation was mishandled or want to learn more about employer responsibilities in your province, keep an eye out for the launch of our tool.
Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.
[1] Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, 1st Sess, 39th Leg, Ontario, 2009 (assented to 15 December 2009).
[2]Air Canada et Gentile-Patti, 2021 QCTAT 5829 (CanLII), <https://canlii.ca/t/jl6lc>
[3] Leah Fessler, “Workplace Harassment in the Age of Remote Work,” New York Times (8 June 2021), online: https://www.nytimes.com/2021/06/08/us/workplace-harassment-remote-work.html
[4] Rights of Women, “Rights of Women survey reveals online sexual harassment has increased, as women continue to suffer sexual harassment whilst working through the Covid-19 pandemic,” Rights of Women (11 January 2021), online: https://rightsofwomen.org.uk/news/rights-of-women-survey-reveals-online-sexual-harassment-has-increased-as-women-continue-to-suffer-sexual-harassment-whilst-working-through-the-covid-19-pandemic/
[5] Ibid.
[6] Kachi, Yuko et al, “Association between maternity harassment and depression during pregnancy amid the COVID‐19 state of emergency” (2021) 63:1 Journal of Occupational Health, pp. p.e12196-n/a, DOI:10.1002/1348-9585.12196.
[7] Ibid.
[8] McGuire, Sarayna S et al, “Impact of the COVID-19 pandemic on workplace violence at an academic emergency department” (2021) 53 The American Journal of Emergency Medicine, pp. 285.e1-285.e5, DOI:10.1016/-
2021.09045.
[9] Ibid.
[10] Supra note 2.