Distance Discrimination: Sexual Harassment in the Remote Work Environment

• Publication year: 2021

Stefani C Schwartz and Shannon Boyne^*

Abstract: As the COVID-19 pandemic has changed the traditional work environment to one in which many employees now work remotely, much of the focus has been centered on how to ensure employees are productive workers outside of the traditional work environment. However, issues such as sexual harassment and discrimination have taken a backseat. This article focuses on the standards governing sexual harassment claims under New Jersey law, employer liability for sexual harassment occurring in the workplace, and recommendations for how to prevent and respond to reports of sexual harassment, particularly in the remote work environment.

Now in its second year, the COVID-19 pandemic has altered the definition of the "workplace" for the majority of employees and employers. Rather than working in a traditional office environment, many employees are now working remotely out of makeshift work spaces, converted guest bedrooms, dining areas, kitchens, and basements.

But when working remotely, employees are still protected against discrimination and harassment under Title VII of the Civil Rights Act of 1964 (Title VII) and, in the case of our home state, the New Jersey Law Against Discrimination (NJLAD).

The definitions are clear. Discrimination arises when an individual is treated differently because of his or her protected status, such as race, color, national original, religion, sex, age, marital status, disability, and/or sexual orientation. Harassment, which is a form of discrimination, is unwelcome conduct based on an individual's protected status that is sufficiently severe or pervasive to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

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New Jersey has long recognized that sexual harassment occurring on the Internet can be considered "in the workplace."¹ For example, in Blakey, the New Jersey Supreme Court recognized that gender-based comments posted on an employer's electronic bulletin board used by employees created an actionable sexual harassment claim.² In doing so, the Court noted, "Conduct that takes place outside of the workplace has a tendency to permeate the workplace."³

In the remote work environment, harassment, particularly sexual harassment, can often go undetected. Moreover, the prevalence of social media further complicates the issue of whether employers can be liable for conduct occurring on the Internet. Thus, employers must understand the standards governing sexual harassment claims and employer liability, as well as be prepared to prevent and respond to any work-related harassment occurring online.

Standards Governing Sexual Harassment Claims

In order to state a claim under Title VII and/or NJLAD for sexual harassment resulting in a hostile work environment, the claimant must prove that "the complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable [person of that gender] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive."⁴

Under the first prong, the claimant must show by a preponderance of the evidence that the conduct occurred because of the person's sex.⁵ When any alleged harassment is not facially on account of membership to a protected class, the claimant is required to "make a prima facie showing that the harassment occurred because of [membership in the particular class]."⁶

When the hostile work environment claim is based on sex, female claimants can demonstrate harassment on account of sex by producing evidence of non-facially sex-based harassment accompanied by conduct that was obviously sex-based, or by producing evidence that the conduct at issue was directed only against wom-en.⁷ "All that is required is a showing that it is more likely than not that the harassment occurred because of . . . sex. For a female claimant, that will be sufficient to invoke the rebuttable presumption that the harassment did in fact occur because of the claimant's sex."⁸ In contrast, the New Jersey Supreme Court observed, in dicta, that in order for a male claimant to invoke the presumption in a sex harassment case in which the conduct was facially neutral, he "must make the additional showing that the defendant employer is the rare employer who discriminates against the historically-privileged group."⁹

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Second, a claimant must also prove that the alleged harassing conduct was "severe or pervasive." Title VII and NJLAD do not prohibit all verbal or physical harassment in the workplace.¹⁰ "[D]iscourtesy or rudeness," and "simple teasing, offhand comments, and isolated incidents" do not amount to discrimination.¹¹ Rather, in evaluating whether a claimant has proven that the discrimination was severe or pervasive, a totality of the circumstances approach must be applied, considering the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."¹²

The inquiry then turns to the final two elements, which requires a claimant to demonstrate that "working conditions were affected by the harassment to the point at which a reasonable [person in the claimant's protected class] would consider the working environment hostile."¹³ Under this approach, an objective...