Discrimination doesn’t just include refusing to hire someone based on a protected characteristic, such as race or gender. Harassment based on a protected characteristic can also give rise to a discrimination claim, if the harassment is “severe or pervasive enough” to create a hostile work environment.
Even before the COVID-19 pandemic, the number of employees working from home was skyrocketing. But now, that trend has accelerated even faster. This raises the question: can an employee suffer from a hostile work environment—while working from home?
The answer is yes. Although employees frequently base hostile work environment claims on in-person conduct—such as offensive looks, gestures, or touching—rude or biased comments can also be made in videoconferences, emails, or online chats. A recent controversy in the Fairfax County Public Schools shows how easily this can happen. After the outbreak of the pandemic, the county started using a distance learning website for online classes. But the classes were quickly shut down after students used guest accounts to identify themselves with offensive names and spouted off foul language in chats.
A single insensitive email does not create a hostile work environment. In Curtis v. DiMaio, for example, an employee in New York sent a co-worker, who worked in Delaware, an email with a joke about “Ebonics” and another joke that mocked Polish people. Although these jokes “were ethnically and racially insensitive,” the court found that they did not constitute “severe” “abuse and trauma.”
And an employee who receives a sporadic series of hostile emails will have a more difficult time proving harassment than an employee who is harassed in person. For example, in Gracia v. Sigmatron International, an employee received four crude and racially offensive emails over a series of eleven months. But the court ruled that these emails were not so “severe and pervasive” as to “alter the terms or conditions of the employment relationship.”
Likewise, in the case of Warner v. Pioneer Auto Sales & Leasing, Inc., the plaintiff employee exchanged a series of “flirtatious” and “sexually suggestive” instant messages with a supervisor at a different location. She claimed that the supervisor’s “interest in pursuing a relationship with her” created a hostile work environment. But after reviewing the two’s instant messages, the court concluded that the supervisor’s conduct did not interfere with her work performance, because the plaintiff had been an active participant in the chats and sent most of the lascivious messages.
Despite the outcome in these cases, a series of more obnoxious, frequent, or egregious phone calls or emails could still be found to create a hostile work environment, even for an employee who is working from home. Thus, employers should be sensitive to the risks of a workforce that is communicating entirely online. Employees may be more casual or daring in online communications, and unlike in-person interactions, those written communications or recorded calls will leave an electronic evidentiary trail. Employers should make sure that their employees are trained in proper online communication, and maintain effective channels for teleworking employees to report harassment.
