The risks of sexual harassment in the metaverse

Personnel Today

The metaverse is essentially a 3D, virtual world, where users present themselves to other users as ‘avatars’ and interact with one another. Companies such as Meta, Apple, Microsoft and Google are poised to release a number of new hardware products in 2022, meaning metaverse-related products could become increasingly mainstream.

It can be argued that we’re already poised to enter the “metaverse workplace”, if (like me) you spend a lot of your day talking to colleagues on Microsoft Teams. It’s natural that employers would want to harness the power of the metaverse to improve employee engagement and foster better connections between colleagues. However, it’s also likely that we’re still a few years away from metaverse technology being commonplace in a typical UK office – especially given the potential significant set up costs with investment into virtual reality wearable technology for employees that will be required.

Discrimination and sexual harassment in the metaverse

There has been a significant amount of recent press on how the metaverse already has a “groping problem” – this makes for depressing reading. A recent example, from May this year, is of a 21-year-old researcher being sexually assaulted in Meta’s virtual reality platform Horizon Worlds, when a male avatar led her into a private room and raped her avatar. The researcher also said she witnessed homophobic slurs and virtual gun violence. Her case seems to be one of many.

Meta, one of the biggest proponents and developers of metaverse technology, has introduced a “personal boundary” function, which users can turn on to ensure that other avatars cannot come within a certain distance of their avatar. There are also mechanisms to block and report users.

When all of this is translated into the workplace, however, it poses a tricky situation for employers. If the workplace was contained in a metaverse, then colleagues’ avatars would have to interact with each other regularly and likely on a proximate basis. This would allow for collaboration of course, but the risk of misconduct remains – as it does in the physical workplace.

The definition of sexual harassment in the UK Equality Act is a wide one. For behaviour to be harassment, physical touch is not required: just “unwanted behaviour that has either violated someone’s dignity, whether it was intended or not, or created an intimidating, hostile, degrading, humiliating or offensive environment for them, whether it was intended or not.” Of course, such behaviour could include one employee avatar making sexually inappropriate comments to another avatar, as in the “real” workplace.

The same applies to discrimination – there’s no reason that this also couldn’t take place in the metaverse. Usually, users in a virtual world or gaming environment users would choose avatars with the same characteristics as them – in terms of race, sex, gender and even pregnancy status, for example. However, that’s not always the case, and users may choose to have a different skin colour for example, or present as a different gender.

Discrimination in UK law is not just unfair treatment based on someone’s protected characteristics, but also their perceived characteristics. So, it’s likely that one employee avatar making discriminatory comments to another avatar based on a perception of their protected characteristics would amount to discrimination. It’s also conceivable that an employee’s choice of avatar characteristics might itself give rise to discrimination claims as being akin to wearing blackface to a work event.

For employees who do behave poorly, employers can likely take similar action as to when such conduct takes place in the “real” workplace, by following a disciplinary procedure in the normal way, and the consequences (warnings, dismissal) would be the same. To ensure employees are aware of the standard of behaviour required in the workplace, and to mitigate the risks of harassment and discrimination, employers should consider taking the following steps:

• Review and update policies and procedures – employers likely have disciplinary, grievance and equal opportunities policies in place, and these would likely already cover behaviour of employees and sexual harassment in the metaverse. However, it would be useful to explicitly state that such policies apply in the same way to the metaverse workplace.
• Training – as with policies, training around discrimination and harassment should specifically include examples and scenarios that could arise in the metaverse workplace, so employees are aware of the standards required of them. Training will also likely be required for managers and HR professionals, who will need to know how the metaverse works so they can implement policies and standards effectively.
• Safe spaces – some of the metaverse tools already have safe space functions to allow avatars privacy and distance from other avatars. Employers will want to consider how to make employees feel comfortable in the workplace, perhaps by introducing quiet or safe spaces, but also balancing this with the need for employees to be in the same virtual space to collaborate.
• Reporting procedures – as with in the real workplace, employers should make sure there are clear reporting channels for employees to inform HR of any misconduct.
• Avatar creation – employers could consider limiting how creative employees are when creating their avatars, and ask them to make sure the avatar presents the same characteristics as them.
• Consider the (mental health) impact on the employee – if an employee is subject to discrimination and harassment as an avatar, employers should be mindful not to be dismissive of this and to treat this in the same way as they would an instance of such misconduct in the real workplace.

Monitoring employees

Any monitoring of employees in the metaverse will need to be justified and proportionate. Employers who monitor employees and collect sensitive personal data, will have to justify this. Employers should be open with employees as to what exactly they are doing – existing employee-facing data privacy documentation will likely need to be updated to tell employees that their activities in the metaverse are being monitored and how. There is an implied duty of trust and confidence between the employer and employee, and employers should ensure that the level of monitoring of employees in the metaverse does not make them fall foul of this duty.

Jurisdiction issues

Although UK employment law likely applies to employees working in the UK under a contract of employment with a UK governing law clause, the waters are slightly muddied by the fact that the metaverse platform owner and servers are in different countries – a possible argument may be that the laws of that country apply. This is yet to be tested, but for now, employers should continue on the basis that the employment law risks in a virtual workplace are the same as in the “real” one.

Read the full article here.