Welcome everyone. We are back here on The Digital Workplace podcast. Today our guest is Christina Hynes Mesco. She is Of Counsel at The Prinz Law Firm. Hey Christina, how are you doing today?

I’m doing great. Thank you, Neil, for having me.

Very excited to have you on. This is such an important topic. You reached out to me and said, ‘Hey, are you talking about this?’ I’m like, ‘No, we’re not. We should.’ We’re talking about sexual harassment in digital workspaces. So, that’s going to be a very important topic. But before we do that, we need to check to make sure that you are a certified human. So, I’m going to ask you a capture question. Your question is, are you more likely to over-plan or under-plan a party with friends?

I would say over-plan. And that gets me in trouble sometimes, because I sent out this elaborate invitation once and I put one start time in the body of the email and then one in the link for the online invitation. Two different times. So, one of my friends showed up and I was still in my pajamas. So yeah, true story. So, over plan but under execute, let’s say that.

Okay. Oh, yeah. That’s a tough one. I’m very much like, if it’s just with friends, I’m like, yeah, show up sometime and maybe we’ll be ready as long as you’re cool with that.

Yeah, you can always use extra helping hands when you’re getting ready. COVID has been nice because I’m like, just come in the backyard. It’s good.

Yes, absolutely.

Nothing else at all. 

Well, cool. Let’s jump into this. We’re talking about updating our understanding of sexual harassment when it comes into the digital age. You deal with this from a legal standpoint. So, just share your perspective of why this is a topic you’re passionate about, and why it’s something you feel people need to be talking about?

Okay. So, I am an employment attorney, employment business attorney. So, I advise employers and employees regarding these issues. And so, I think, why I’m personally passionate about sexual harassment in the workplace is that it’s a violation of human dignity. People are working because it’s a means to an end. They want to live their lives. And their workplace should be free from bullying, from harassment, in particular, sexual harassment. I’ve worked with many clients who’ve been subjected to it, and of course, friends, and also had personal experiences. And it’s damaging. It’s damaging to workers. It’s damaging to businesses too. 

Because obviously your employees are your biggest asset in a business, and if you’re harming them, you’re not getting the best work from them. You’re not getting all the creativity and all the productivity that you could get from them. So, I think that’s one selfish reason that employers should be interested in making sure their workplaces are free from sexual harassment. And, of course, the damage that it does cause employees. As I said, I’ve walked with people, held their hands through these experiences, and I am passionate about trying to, on the employer side, help employers understand how their workplace is impacted by this sort of behavior, and then protect employees from it when it’s happening to them.

Yeah. Well, absolutely. It’s something that we need to be talking about and need to update on. So, let’s just start there. Let’s give a definition of sexual harassment and then also how that changes when you move into digital spaces.

Great. So, sexual harassment is defined as unwelcome conduct of a sexual nature. And this kind of conduct can create a hostile work environment for employees if it is severe. So, something very egregious like a sexual assault or touch like unwanted touching. So, something of that nature. Or thinking about in the digital space, sending pornographic images or something unsolicited to another employee. Or pervasive. And pervasive meaning where there are multiple incidents that occur over time and taken together as a mosaic, they create an environment that impacts an employee’s ability to perform the work that they’re there to do. 

So, of course, there’s another definition too. It is quid pro quo, which is a little more obvious, which is like, ‘Hey, you do this. You go on a date with me, or you have sex with me, and you’re going to get a raise or a promotion,’ or whatever the case may be. That’s a little more obvious. But really, what we’re seeing that’s problematic in this digital age is that pervasive, sexual harassment, hostile work environment. And it can be a multitude of things that taken together create this environment that just is harmful to an employee. So, jokes, repeated comments on appearance. Basically, a good rule of thumb that I use with employers and employees is that any sexually tinged communication or conduct that’s so frequent or severe that changes your working environment and working relationships, that constitutes sexual harassment in the workplace.

So, take something like jokes, like repeated type things that come up there. It’s one thing if you’re in the office and somebody’s telling those jokes in the break room. It’s still wrong. It’s still you’re overhearing that versus putting those jokes into a chat channel or making some kind of off handed comment about a client or someone else that’s there or different things to be there. How does that change the nature of harassment? I mean it’s all sexual harassment, but it’s almost like a different feel of it for people experiencing it and people that are witnessing it. So, what’s your impression on that?

Yeah, so you’re totally right. I mean, you could hide before if you knew those co-workers if you’re in the office with them, and you know that there are certain co-workers who just either rub you the wrong way in terms of their personalities or are known for making nasty jokes or saying things about appearances or just speaking disrespectfully in a sexual manner. You could avoid them. Pass them in the hall, see in some conference call or whatever. But in these digital spaces, you have a captive audience. These harassers have a captive audience. You’re stuck on this Zoom call. You can’t just mute one individual person. I guess you can sometimes, but if you’re not in charge of the meeting, you can’t. In the chats, you can’t unsee it. The GIFs. Even emojis, can obviously have sexual connotations. 

And so, you can harass people without even saying anything or using any words. So, I think part of that is that it’s, in some respects, created a captive audience for harassers, and provided a multitude of different platforms where they can carry out this negative behavior, where, as you said, it was usually in the break room or in the locker room or whatever. Not that that is at all appropriate. It’s still harassment and can still create a hostile environment. But it has the power to impact many more in the digital workspace.

Tell me about the nature of the fact that if somebody sends something inappropriate to somebody, either in a public channel or privately, one maybe good thing about that is that you have a record of it. You can take a screenshot real quick. There’s some kind of permanent way that you can record that whereas if somebody was just having a conversation, you may not have been able to record that before. Does that actually make it easier to root out sexual harassment in the workplace? Or does some of these things make it actually harder with digital means?

I think it cuts both ways. I think, in some respects like you said, you could quickly record something even on your phone if you are on a Zoom meeting, or you can record a Zoom meeting sometimes, and save text messages or instant messages. I think that it will make proving a case that’s carried out in that manner more easy for the plaintiff. The problem I think is where maybe you’re not getting all of the verbal cues that would go along with text messages or emails, for example. And so, this message that you might receive might be perceived by the recipient much differently than it is sent over by the person who’s sending the communication. 

I was thinking about some examples of this, like, how many different interpretations could you come up with a line of text, like, ‘Hey there. Looking great today.’ That can mean so many different things. It’s all in the eye of the beholder. Right? Are you saying, in this text, in this chat, ‘Hey there, I look nice today? You’re talking about my physical appearance? Are you talking about the fact that I just knocked it out of the park with a client? That I did great on that presentation?’ 

I think that there might be some innocent communications that can be mistaken for harassing communications and you create issues where there might not have been in the office. Because you have all those facial cues, and the vocal inflection, and all those important things from where 90% of our feedback comes from. We really don’t understand text all by itself without those pieces of information that we get.

And you talked about emoji too. I think that’s legitimate to bring up and say, one, do we all have a shared understanding of what each individual emoji means? Some of them may be innocuous. Some of them might have like, okay, depending on what was put in front of it, some of it is very obvious. So yeah, trying to develop that kind of shared understanding is tough.

It really is. And I think courts are grappling with that because emojis have come up in it and I mean, it’s true. 

Yeah, I believe it.

The situation I saw was the recipient of some of these communications was like, ‘Hahaha, you don’t know what’s happening recipient’ because the person receiving the message didn’t get the sexual connotations with the emojis. And I think it just went over their head, which I think is just harassing and nasty and bullying. And that’s just wrong. So, it’s a really tough issue for employers to grapple with because we’re going to say no emojis, no GIFs and things like that. I don’t know. It’s a fine line that employers have to walk in terms of policing their workplaces but allowing people to express themselves and be themselves in some respects.

So, what would you say to somebody who’s leading a team, they’re fully digital, and the person who’s in leadership wants to create a safe space for everybody, wants to make sure no one is feeling threatened, and especially no sexual harassment goes on? What are some of the unique things here in 2021 that you would tell them, ‘Hey, make sure you include these things. Or make sure you talk through these things.’ Is there anything you’d put on that list?

I would definitely say please make sure you have a workplace policy in place. And you’ll be surprised. So many employers, especially as they get going and they’re growing and they’re scaling, they don’t think about these things. Have a workplace policy in place regarding communication. I think having a shared understanding of how you’re going to use emojis or GIFs or chat or workplace communication channels, how you’re going to use those. So, something like, avoid personal communication through workplace communication channels. If you want to speak outside of the workplace, then do so on your own devices or communication channels. But that is not totally to insulate an employer from liability, however. Yeah. I’ll get to that later. But obviously taking a top-down approach to the whole, to communication in general. 

If you have an employer or managers who are speaking respectfully and straight, keeping away from innuendo, keeping things respectful, then that’s obviously going to have an impact on the tenor and temperature of the conversations in your workplace, in the digital space, I think. So, lead by example. You can’t tell employees, do as I say, and not as I do. Because it just doesn’t work. We know that. 

And then another thing too is, as employees are home and lonely and reaching out to one another through friendships and maybe even romantic relationships, ensure that you have a policy that’s very clearly communicated regarding how those relationships should be carried out in the workplace and what they can and can’t look like. Because an example is the power differential between a manager and subordinate. A lot of workplaces prohibit that relationship because of the opportunity for abuse that can be there. 

And then even when things go bad or if people just break up, there could be allegations that the personal relationship led into the professional relationship and somehow created a hostile work environment. 

And training, training, training, training, training. We’re always saying that in our office, but certainly telling your employees what your policies are, making sure they understand them, and that they abide by them, is so important. People will act the way you tell them, that you expect them to act, and then of course, taking action if there are aberrations, in terms of people violating that policy because the other thing is that your workplace culture is really created by what we allow employees and managers to get away with. So, those would be my best high points I think in terms of navigating digital spaces for employers and employees.

I especially like the emphasis on training. I think we can spend a little more time on that. I was in a Clubhouse call yesterday. We were talking about the nature of remote teams and someone was talking about virtual reality and augmented reality and about how actually delivering some of these training programs through those means creates a much more effective training experience. If you’re actually there immersively seeing, how would you interact with this situation if you saw this? If this was going on right in front of you, if you saw these things, this is what the Zoom call looked like, should you speak up? Should you report it? Should you say something about it? To actually be able to provide those unique experiences goes beyond just sitting in the HR room and having somebody give you an hour lecture on types of things. So, I think that it’s a good opportunity to be able to do better training. 

Yeah. Oh, I love that, Neil. I think I want to adopt that, the virtual reality, and take snapshots of the Zoom meetings. It’s a far, far cry from the videos that you were forced to watch, to look at them all. And they’re like, 16. But you’re totally right. I think having a dynamic training that encourages participation, and helps, that doesn’t bore people to tears, is so important. 

So, in Illinois, I believe it was last year, all employers, regardless of size, are required to have at least once a year sexual harassment prevention training with their employees and managers. And the Illinois Department of Human Rights, which is like the EEOC but the state counterpart or state version that enforces the Illinois Human Rights Act, anti-discrimination, sexual harassment, they put out not a Word document but a PowerPoint presentation that employers can give to their employees. But, again, to your point, it’s boring. No offense. The content is great. It really is. And maybe it’s all delivery too. I mean, if you have a fantastic presenter with that in the background, then maybe it’s good. But I think having training that is engaging is so important, and that can make all of the difference in how your workplace looks and how people behave in your workplace, and how employees feel to work in your workspace, digital or otherwise.

Yeah, for sure. And we all agree, sexual harassment is wrong. But to actually be in that situation and see it happening or to experience it yourself and to know what to do, all that stuff just goes out of your mind unless you’ve actually practiced that and been there.

You’re right. You’re totally right. And one other thing too that I think is helpful to your point to see it and experience it. Neil, everyone has such different reactions to being harassed. Some people are awesome. They have great boundaries, and they can just say, ‘That’s inappropriate. Stop that now.’ Some people giggle and freeze up and they don’t really know, or they don’t recognize what happened until two hours later. And so, I think an important piece of the training always needs to be bystander training too. So, if you see Jim on the Zoom call making nasty comments, and you see Sally cowering in the corner, you can say, ‘Hey, hey, hey, hey, Jim. Let’s bring it back. Let’s stay on topic.’ So, you can intervene on behalf of those employees and that would be one way to do it in a digital space to make sure everybody’s brought along and not marginalized.

I would add one thing. If I were a leader of a team like that, that I would want to say is, that when you’re in the office, if you consider yourself, ‘I’m going to be accountable for this team and everyone’s safety, I can see interactions.’ You can pick up on energy that’s going on. You can see, oh, this person is spending maybe a little bit more time with this person over here. And that may not be going well. Let me keep an eye on that. In a digital world, you don’t get any of those cues often. I don’t know when two people on my team are connecting a lot, if they have a huge chat stream going on or if they have no communication. I don’t get to see that. So, I think as leaders, we need to be honest with people saying, ‘I don’t have as much visibility into this.’ So, you need other people to be accountable or not accountable, but to speak up about that more and to share those things more. I don’t know if that’s the only solution but that’s one thing I’m thinking about, too.

Oh, Neil, that you make an excellent point. Because yeah, you can think about how as a manager, you’re totally unable to monitor what’s going on other than in the Zoom meetings. You can’t be on every instant message. You can’t be in all the chats. You’re totally right. And I think what you said is to invite employees to come to you with issues if you’re a manager. I think that’s fantastic. And so having an open dialogue, even if it doesn’t necessarily rise to the level of the black letter law of sexual harassment, if something’s making you uncomfortable, come on, let’s talk about it. Let’s have a dialogue so it doesn’t fester. But again, a lot of people are unaware of their behavior, sometimes lack self-awareness. So, talking with them about how they might be approaching their employer, making an employee feel that before it turns into real harassment, is so important. 

And then to your point about, where do I go with this information? If I do feel that harassment might be going on or somebody’s spending too much time with me, or whatever the case may be, having multiple avenues of reporting that information. Because if it’s a supervisor, well, you can’t just go to your supervisor, right? If you’re small and you don’t have an HR, where do you go? So, I think having multiple avenues to report any kind of behavior that makes you feel uncomfortable can also combat the lack of oversight that is just part and parcel of the digital workplace.

Yeah. And it almost makes me feel like now it’s become, okay, not just as a leader but as a whole team, we need to be committed to this for each other, looking out for each other’s backs. Obviously, a lot of it is going to come back to the leader. But if, like you said, if I notice something is going on with two other people that nobody else has seen, that I should be able to have multiple channels to be able to talk about that. It’s a great point. Good. I feel like things are changing a lot. We have people who are, I think you mentioned before, just in general, romantic relationships. People are lonelier, probably than usual. Some people are very lonely. Some people are very fed up with people that are in their house all the time. So maybe, especially if you’re hiring young folks or just single people who are there, they’re maybe more familiar with digital means, but they’re less comfortable in person. Can you talk to some of those, maybe even generational divides that are there, around what’s appropriate now? Maybe they’re used to talking one way when they were even in school or coming out of college. And now this is a work environment, but I’m still chatting. I’m still putting them in everything digital. How can you help people make that transition?

Yeah, that’s so important. And especially the intergenerational question, too. Because even our policy, workplace policies, are a total reflection of an era that’s bygone. Right? So, that’s a very important point. Again, I’m going to say training. Making sure that you set the expectations. I mean you can’t fault employees who come in, who are fresh out of college and they’re used to multitasking and having multiple different chats and have one letter to represent a word, in terms of the vernacular that they’re using in chatting. So, setting expectations. What do you expect about communication? How do you want it? Are we using GIFs? Are we using emojis? How do employees communicate with one another? I think that’s a really good question. 

And then also our policies too. So, I’ll tell you a quick story. There are a lot of non-fraternization policies that employers have that say something to the effect of like, ‘Don’t have a romantic relationship with a subordinate or if you have a romantic relationship with a peer, then you have to report it to HR’, emphasis on the word relationship, right? Because, as we’ve seen, it’s not like the days of old where somebody might ask somebody on a date and then they go on a date and then maybe a relationship ultimately develops. It’s not like that anymore. People are interacting in different ways. 

So, I had an employee situation where a woman and a man were in a friendship, let’s say. They were getting together outside of work. It wasn’t totally sexual. It was some kissing but then they kind of fell away. So, there was no relationship per se, right? And I think somebody ghosted somebody else or whatever. And ultimately, the woman came to HR with a sexual harassment claim because the male part of the friendship or whatever it was kept trying to get in touch with her. You know it was all fairly innocuous. Nothing overtly sexual. It was just like, ‘Hey, I had such a great time. I want to get together again’ and that sort of thing. But the woman never said, ‘Don’t send me these messages anymore’ or ghosted. So, there were a few problems there, like, there was this question of is it a relationship? Do we need to report it to HR? What do we call this? 

And then also being clear in your communication with one another. And that would be part of the training. Make sure that you mean what you say and say what you mean. If you are not, then say I am no longer interested. Robot. But I think, especially in the workplace, you need to have good boundaries around what those relationships should look like, friendship or otherwise, so that no one ends up feeling like this woman did. Harassed. Whether it was legitimate or not, is really not for us to say. I mean if she felt bad in the workplace getting these text messages from this male, it’s likely she’s not able to do her work well, and she’s stressed out, and afraid to see him on Zoom meetings. And so, I think having clear boundaries and some training on communication in the workplace and, of course, relationships, is so important.

Yeah, and just communication in general. Like you said, it’s about ghosting and if you don’t talk to somebody and then if they pursue you, is that harassment? And then what if you’re doing sales training the next day and it says, ‘Hey, man, if somebody doesn’t follow up with your stuff, you got to keep at it. Keep at it. Keep following up with it.’ It’s like, ‘Well, you told me to keep following up. That’s what I’m supposed to do.’

Right yeah. Three noes. Three noes. Give it up. Yeah.

Well, Christina, this is a new world and I’m so glad that you are there helping people to navigate through it. I don’t wish you well in your business. I don’t hope you have a lot of cases in this, but I do appreciate you bringing it up. And when it is an issue, I’m glad that people like you are out there that can help us sort through this. So, thanks for being there.

Thank you very much, Neil. Appreciate it.

Well, we appreciate you being on the show. We hope to connect again in the future just to get an update and remind people of this topic and how important it is. But thanks for being on the show and we look forward to talking to you again.

Definitely. Thank you.