By Erik Eisenmann, Tracey O’Brien and Catarina Colón
Most individuals are familiar with online video games such as FIFA, Minecraft, Fortnite or maybe, Last of Us permitting players to play and communicate with others online while seated at their Xbox or PlayStation consoles. Augmented Realty (AR) games, such as Pokémon-GO, superimpose a digital setting into the players’ own real environment, incorporating virtual components into the real world and increasing the level of physical activity.
With the advent of virtual reality (VR) games, multiple players interact to play a game in a digital environment, called a metaverse. VR headsets immerse the player in the environment so that visually the player is in the virtual environment and cannot see the outside world. AR and VR technology is rapidly developing beyond the gaming applications to internal and external applications used by businesses. Will AR and VR experiences become mainstream, transforming the way individuals engage in not only recreational activities but also workplace environments? Spoiler alert: it has already begun.
It’s been reported that corporations are utilizing virtual worlds for recruitment purposes, internal team meetings, and conferences. Imagine attending a conference at a virtual location and meeting colleagues in exotic places such as digital French Polynesia or Davos, Switzerland. You will attend, of course, as your avatar while you are physically located in your home, wearing your VR headset and for an even more immersive experience, perhaps haptic gloves and a vest allowing you to “feel” the experience in the virtual world. Whether or not you are ready to embrace virtual reality in this broader sense, companies like Meta Platforms, Inc. (Meta), Microsoft, Apple, and Google are innovating virtuality into reality and creating immersive digital environments.
As technology expands the workplace, employer risks expand.
Before you go too far down a virtual rabbit hole, let’s discuss the reality of interacting with others in a virtual world. In reality, employers and employees navigate numerous human resource issues arising from behavior that is unlawful and exposes employers to significant monetary damages, low morale, and loss of productivity. Although the #Metoo movement revealed the pervasiveness and severity of sexual harassment in and out of the workplace, sexual harassment persists in the traditional workplace. Existing technology has created more spaces in which sexual harassment can occur in the workplace.
Cyberbullying conducted over online bulletin boards, text messaging, and social media associated with a workplace has been the source of sexual harassment claims resulting in employer liability due to unlawful hostile work environments. Evidence of sexual harassment in online employer forums also has been used as evidence probative of sexual harassment in the employer’s workplace. As technology has expanded the boundaries of the employment relationship beyond the traditional physical workplace, employer liability for unlawful conduct related to the workplace has also expanded.
There is zero probability that a virtual world would be immune from the same employment discrimination risks that exist in traditional workplaces since individuals control personal avatars in virtual worlds. Indeed, the same bullying, harassment, and unlawful discriminatory speech that exists, in reality, is mirrored in online activities as reported by the Center for Countering Digital Hate and as experienced by a beta tester for Meta who reportedly was groped by a gang of male avatars and subjected to sexually harassing comments in the metaverse. The beta-tester described the experience as shocking and offensive, causing her to suffer from anxiety. The statement describing the experience is not a surprising revelation since the object of virtual reality is to provide an experience that parallels reality.
A hypothetical example of sexual harassment in the metaverse.
Consider a scenario in which an avatar for one employee (harasser) makes offensive and harassing or derogatory statements to a female colleague’s avatar in an employer forum or even touches the female colleague’s avatar in a way that is offensive and sexual in nature. The conduct occurs persistently in the virtual platform used for training purposes. The harasser continues the harassment outside of the virtual workplace by sending the employee unwanted offensive emails and text messages. The conduct in the virtual workplace was witnessed by other employees, including supervisors. The female employee reports the conduct to her supervisor. The conduct continues, the female employee is not informed of any actions taken to address the conduct, 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 who has an obligation to report the complaint to the appropriate Human Resources Department and support the investigation of the complaint. The conduct is offensive, sexual in nature, and has spilled into other electronic communication platforms. Consequently, the conduct appears to constitute legally actionable sexual harassment. At a minimum, the ancillary electronic communication, if determined to occur outside of the workplace, is probative of the sexual harassment that occurred in the virtual workplace. Further, to the extent the employer fails to use reasonable care to investigate the complaint and promptly correct the harassment, the employer will be deprived of the defense to a hostile work environment claim based on a prompt investigation and appropriate disciplinary action.
Employment laws are adaptable to behavior in digital workplaces.
As the employment laws have adapted to online harassment and cyberbullying, the employment laws also will adapt to address employment issues in virtual workplaces. Some will assert that sexual harassment cannot occur in a virtual environment because an individual’s physical body has not been touched, and the individual has the option of leaving the metaverse or initiating a safety protocol that shields them from aggression and harassment. The environment may be fictional, but the conduct is not.
Notably, the absence of actual touching is immaterial to a claim of sexual harassment. Being subjected to verbal derision and offensive comments based on a protected characteristic such as sex in an employment context is unlawful. It should be incumbent on developers to provide safety features that protect players from offensive, unwelcome behavior. Such safeguards though would not insulate employers from liability. Employers must still discipline bad actors who disrupt virtual workplaces and violate company policies and employment laws that apply to the workplace.
This nascent stage of the metaverse presents an opportunity for employers and their legal counsel to consider the optimum opportunities the metaverse presents in the context of employment and the workplace. Is the metaverse a good substitute for in-person team building or for facilitating corporate culture? Under what circumstances should the metaverse be the preferred forum for conferences? Or is the best use of the metaverse in the employment context one that is more limited, such as to facilitate simulations for job-specific purposes related to planning the design of physical structures or environments; to test processes and seek solutions for operational challenges; or to facilitate training on techniques and procedures that improve outcomes, such as in healthcare fields? Identifying the optimal use of the metaverse in the employment context may be the first step in preventing a new opportunity for familiar unlawful behaviors.
Doubtless, the introduction of AR and VR applications into the work environment presents an immense opportunity to innovate and improve products and services. To the extent these applications place individuals in virtual worlds for a purpose that contemplates interaction between individuals, employers have a responsibility to ensure their employees are secure and not subject to unlawful harassment, and to appropriately address incidents when they arise. Employers may also consider providing training to their employees on the topic of workplace conduct before utilizing AR or VR applications for work purposes, and updating their handbooks and policies to incorporate language related to the use of AR and VR applications.
The Labor and Employment team at Husch Blackwell is a recognized leader in complex labor and employment matters and litigation. Contact Erik Eisenmann, Tracey O’Brien or Catarina Colón for employment issues related to your workplace.