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The Role of Technology in Sexual Harassment

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Many companies are using social media, shared calendars and instant messaging services to connect employees, but with this technology comes an increased opportunity for harassment.

Today, social media has changed the landscape of how individuals communicate. Communication is increasingly in writing, with the extensive use of abbreviations and emojis, all of which can easily be misinterpreted. People tend to let their guards down and post pictures or stories on social media, which are available to hundreds or thousands of people, including co-workers who are “friends” or “followers” even though they would never have offered the information to those co-workers either through face to face or direct communication.

Anne Cherry Barnett, principal at Polsinelli, sat down with Inside Counsel to discuss the role of technology in harassment and what companies can do to lessen the risk. She focuses her practice on employment matters and has represented clients of all sizes, including start-ups and Fortune 50 companies.

“The blurring of lines between personal and professional situations has made it more likely for co-workers to obtain intimate details about one another and track the personal lives of those co-workers, all of which creates fertile ground for potential harassment in the workplace,” explained Barnett.

Additionally, electronic communications are available 24/7 and travel at the speed of light. With the click of a button on a smartphone they can be duplicated, forwarded, or sent to an unlimited number of others without the original sender’s knowledge or approval. And, typically these communications create a sort of electronic footprint that never goes away, so they can later become evidence if there is a claim of harassment.

Employers have an obligation to maintain a work environment free of harassment rooted in any protected characteristic and to enforce anti-harassment and discrimination policies among their workforce. So employees should be trained on the importance of complying with company policy through all communication, including social media, instant messaging and shared calendars. While the law has been slow to keep up with the rapid pace of the development of new technology, per Barnett, it is a good practice for employers to take steps to maintain the confidentiality of employee’s whereabouts and personal information.

“It is critical that employers have policies in place to protect employee records and the personal information contained therein. The best practice is to keep this information separately from the rest of the employee’s information so that it maintains a higher level of security,” she said.

Additionally, employers are obligated to maintain their various systems and programs so that all evidence is preserved, which is especially true when litigation is anticipated and/or pending. Employers should abide by an appropriate document retention policy that applies to email messages, instant messages, emails, videos and pictures. Records should not be destroyed without reviewing the company’s record retention requirements and confirming that litigation is not pending.

“Individual privacy and inhabitations have diminished as technology has developed. It is commonplace for people to post online about myriads of personal issues including vacations, social activities and other personal activities,” explained Barnett. “Many allow the indirect nature of social media and online communication to let their guard down in protecting their personal privacy.

This means that employees who ‘friend’ or ‘follow’ a co-worker on social media, or through other applications may be privy to more delicate information, including what that individual looks like in a bathing suit on vacation, who they are dating, where they are vacationing and other personal items.” This information can sometimes lead to more nonprofessional conversations in the workplace or online. Given the lack of personal interaction involved with electronic communications and social media, individuals often feel emboldened in their communications, resulting in inappropriate and nonprofessional communication and/or situations. This is especially true when an employee feels like they “know” or is “friends” with a co-worker such that the personal and professional boundaries are indistinct.

“Access to other employees’ personal information and/or location of an employee’s presence are becoming more common place as society and workforces utilize texting, social media and other programs that allow employees to transmit photographs and messages from their smartphones,” she explained.

So, what can companies do to lessen the risk? Barnett advises the following:

Robust and consistently applied polices, well-trained managers, and encouragement to report. First, a company must maintain an effective anti-harassment policy. For any anti-harassment policy to be effective, management and staff must be well-trained not only to the terms of the anti-harassment policy, but must also be trained about how sexual harassment may manifest itself, and how to identify inappropriate conduct.

“Management must be trained to enforce these policies and create respectful work situations for their teams, including an atmosphere where employees feel at ease reporting and/or speaking out about inappropriate or uncomfortable actions by others,” she explained. “And, the company’s anti-harassment policies must be consistently enforced and include clear consequences for failure to follow. Transparency within an organization as to what kind of behaviors will or will not be tolerated creates predictability and encourages compliance and respect within the workforce, reducing instances of harassment.”

Training employees on the importance of protecting their personal information privacy. Many employees do not understand the full extent of the information that they voluntarily place online via various social media channels or in shared applications such as shared calendars or instant messaging. Once an individual understands the reach of the information they provide online, and the permanence of their online activity, they can take steps to reduce that reach.

“For example, items on shared calendars can be made more private and only indicate that a person is busy, rather than providing the specific information as to where the employee is and what they may be doing,” said Barnett. “Additionally, users can remove location services from the various applications they use on their phones that communicate their exact whereabouts. The control of privacy in these applications is well within the control of the user.”

Utilize artificial intelligence. Today, one of the benefits of technology is the ever-increasing ability to mirror human capabilities and/or interactions. So, some companies are starting to use AI for the purposes of monitoring employee communications on company systems and programs to scan messages and serve as a reporting tool.

She added, “While the data-analysis technology now is far from perfect, it can provide a starting point for employers to reduce the risk of harassing behaviors in the workplace.”

Change settings on company applications. Last, according to Barnett, employers can and should change the settings in their various applications to prevent unwanted communications. Employers can make default settings more protective of employee locations and can require that an employee affirmatively accept instant messages, etc., prior to receipt to limit the ability of workers to harass and/or annoy their co-workers.

Amanda G. Ciccatelli is a Freelance Journalist for Corporate Counsel and InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation and more.

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