Excerpted from a State Bar of Wisconsin Blog by Catarina Colon, Erik Eisenmann and Tracey O’Brien

Can an employee in a virtual environment be harassed? Many individuals are familiar with online video games that permit players to play and communicate with others online while seated at their Xbox.

Augmented Realty (AR) games superimpose a digital setting into the players’ reality, thereby incorporating virtual components into the real world and increasing physical activity.

With the advent of virtual reality (VR) games, increasing numbers of players can now interact online in a digital environment called “metaverse.” VR headsets allow players to immerse themselves in the environment, divorced from the natural world. AR and VR technology is rapidly developing beyond gaming.

Will AR and VR experiences become mainstream, transforming the way individuals engage in the workplace? Spoiler alert: it has already begun.

Corporations are utilizing virtual worlds for recruitment, meetings and conferences. Imagine attending a meeting with colleagues in virtual places such as the Swiss Alps. You will attend, of course, as your avatar, while you are physically located at home wearing your VR headset.

For an even more immersive experience, you don a haptic vest and gloves, allowing you to “feel” the experience. Whether or not you are ready to embrace virtual reality, companies are innovating “virtuality” and creating immersive digital environments.

As Technology Expands, Employer Risks Expand
As technology has expanded beyond the physical workplace, employer liability for unlawful conduct has also expanded. There is zero probability that a virtual world would be immune from employment discrimination risks.

The same harassment and discriminatory speech that exists in reality is mirrored online, as reported by the Center for Countering Digital Hate. There was a recent Meta-tester who reportedly was groped by male avatars and subjected to sexually harassing comments. The statement describing her experience is not a surprise, since the object of virtual reality is to provide an experience that can parallel reality.

Hypothetical Example of Sexual Harassment in the Metaverse
Consider a scenario where an employer uses a virtual platform for training. One employee’s avatar persistently makes offensive statements to a female colleague, or even touches the female colleague’s avatar in a way that is sexual.

The harasser continues by sending the employee unwelcomed emails. The employee reports the conduct to her supervisor. The conduct continues, the employee is not informed of any actions taken, and she sues the employer. Can the employer be held liable for sexual harassment?

Yes. To avoid liability, the employer must take several actions, beginning with the supervisor reporting the complaint to the HR Department and supporting the investigation.

Employment Laws are Adaptable to Behavior in Digital Workplaces
As employment laws have adapted to confront online harassment, they will also adapt to address virtual workplaces. Some will assert that sexual assault cannot occur virtually because an individual’s physical body has not been touched, and the individual has the option to leave the metaverse. The environment may be fictional, but the conduct is not.

The absence of actual touching is immaterial to a claim of sexual harassment. Being subjected to offensive comments based on a protected characteristic such as sex is unlawful. It should be incumbent on developers to provide safety features that protect players from unwelcome behavior.

Is the metaverse a good substitute for in-person team-building? Or, is the best use of the metaverse one that is limited, such as simulations for job purposes or to facilitate training to improve outcomes? Identifying the optimal use of the metaverse may be the first step in preventing a new forum for unlawful behaviors.

Conclusion: Employees Must Be Secure in Every Environment
Doubtless, the introduction of AR and VR applications into the work environment present immense opportunities. Employers have the responsibility to ensure employees are secure and not subject to unlawful harassment, as well as the responsibility to address incidents when they arise. Employers may also consider training their employees about virtual conduct before utilizing AR or VR applications and updating their policies.

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