Monday, April 25, 2022

Mask mandates might be gone, but maskual harassment isn’t

Workplaces, state and local governments, and the CDC have relegated mask mandates to the dustbin of Covid history. But just because people are no longer required to wear masks anywhere doesn't mean that some people aren't choosing to do so on their own. The end of mask mandates, however, has not ended the culture wars that have surrounded mask for the past two-plus years.

According to a recent poll by The Associated Press-NORC Center for Public Affairs Research, 56% of Americans still favor mask mandates on planes, trains, and public transportation, 49% for workers who interact with the public in restaurants and other places, and also 49% for crowded public events. (My own poll on LinkedIn revealed a smaller 36% still in favor of mask mandates on planes and public transportation.)

That leaves a large swath of America strongly entrenched against masks. And some are still expressing their opposition in less than constructive means.

In other words, "maskual harassment" (the harassment of mask-wearing workers by co-workers or customer) is real and is still happening. 

Unlawful harassment is unlawful harassment, regardless of the alleged perpetrator. An employer cannot treat sexual (or other illegal) harassment of an employee by a non-employee any differently than harassment between employees. Indeed, in the words of the Ohio Administrative Code:
An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.
Maskual harassment may be protected-class harassment — an employee might still mask up because of his or her age, because he or she is unvaccinated for a religious reason, because of his or her underlying disability, or because of the underlying disability of a close relative. Or, it might just be straight up bullying. Whatever the case, it should not be tolerated. 

What should an employer do when an employee is being harassed, either by a co-worker or a customer? Take the same five steps it should be taking in any case of inappropriate workplace conduct. 
  1. Separate the victim from the alleged harasser.
  2. Promptly and fully investigate the allegations.
  3. Evaluate the evidence and make a reasoned conclusion as to what happened.
  4. Take prompt and effective remedial steps, if necessary.
  5. Use the complaint as an opportunity to retrain employees about your anti-harassment policy.
Your employees have every right to mask up (or, for that matter, not to mask up, unless you are one of the rare businesses that is still requiring them). Please make sure you treat them accordingly.