Sexual Harassment Issue

San Francisco

I would greatly appreciate your opinions on how you would resolve the following situation that has occurred in one of our retail stores:

A female employee who has been employed with us for four months has alleged that a senior department manager has grabbed her buttocks on four occasions. The senior manager has been employed with us for two years and has no history of such conduct. The female employee cannot recall the approximate dates when this occurred and only recalls that it occurred on four separate occasions somewhere in one of the store aisles. There were no witnesses and she did not tell anyone about it. She alleged that there was no prior conversation with this manager and that he just approached her from behind while she was working in the aisle and grabbed her buttocks and then walked away. Each time she told him to stop it. She does not have any idea why he would single her out for this harassment. This senior did monitor calls for her at the store, at her request, when she had a restraining order against her husband about 3 months ago. The senior admantly denies that he has ever touched her.

This all came to HR's attention when on Saturday, the husband came through the senior managers register line and basically threatened the senior. The senior called the police and also loss prevention. The female employee told the senior that he had, "opened up a can of worms". She later told the store manager that she had not said anything before because she was afraid she would be fired.

The HR Specialist handling this does not believe the female's allegations,but feels it cannot be validated one way or the other. The current plan seems to be to have the female and the senior work opposite work schedule and thus keep them separate. I have a problem with this because it somehow sends the message that the senior has some guilt. I tend to feel the female is not credible.

What do you suggest?

Theresa Gegen TX

My 2 cents worth is that having them on different shifts is probably a good idea. It protects both the company and the senior partner. If this employee is making up things about this manager, she will do it again if she has the opportunity. I think taking the opportunity away from her is a great idea. I also think that management could sit down with both seperately and go over the work place rules (not as punishment but as training).

In the complaining employee's case, she has a duty to bring forth allegations timely so that the company can fully investigate and respond. She should have the policy reviewed with her (her "fear" apparently suddenly went away when the true abuser (her husband) was in trouble).

The last thing I might consider doing is getting a restraining order against the husband so that he cannot come on the store's property. His threats against a manager cannot be tolerated. A restraining order will help because the police will arrest him if he comes to the store again, and he will know that the store is not going to be bullied by him.

Good Luck!

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 08-13-02 AT 04:27PM (CST)[/font][p]I suggest that the HR Specialist may be correct to conclude that 'it cannot be validated one way or the other'. Based on what you say, the complainant could not speculate as to when the events took place, only that they did; there were no witnesses; the accused adamantly denied the accusation and had an otherwise clean record. I might conclude the same as your Specialist did. I would not conclude (out loud to anyone) that I did not believe the female's allegations. I would only conclude that I could not reach a definitive conclusion of validity based on what I had to work with. And based on that, I would not split them up. If you do, one of them or the other will see the split as punitive since they will be assigned a shift they don't want. You're right that the senior will view it as a cloud of guilt and it would send the wrong signal to the complainant as well. If this new employee is making up things about the senior, transferring him will only take him out of the picture. She will repeat the behavior with the next senior on her shift. I think what's in order is the standard individual counseling admonitions. To her I would suggest she report to you immediately any recurrence and that her allegation could not be supported by any other evidence. To him I would suggest that you could not find corroboration of her claim against him. And I would discuss what sexual harassment is and its consequences without giving him any notion that he is perceived as guilty. You might also have a general storewide meeting or shift meetings on the subject. My crystal ball also tells me you will be dealing with the issue of her irate husband again in the near future.

San Francisco

Thank you for your help. I think that you are right that we will have to try the opposite scheduling. This is one situation where I was not particulary happy with an "unable to validate" response. We think that the female may have been trying to make her husband jealous by telling him that the senior had grabbed her buttocks and it back fired when the husband came into the store and threatened the senior. Now she has her back against the wall and can't wiggle out. The husband also called some other stores and told employees there about this senior plus has called our CEO. He has been told to cease and desist. If he does not, we will ask our attorney to request a restraining order. This "ain't" over by a long shot.

Gillian

What a coincidence! I just got back from San Francisco where I testified in a sexual harassment case where one of the allegations was, guess what - the same thing, and without any witnesses that could be identified because the act allegedly occurred on a street corner somewhere. The investigation was just as inconclusive as yours. These are the key points as I see them. You should not act on something that is inconclusive, particularly where there is no previous history on the part of the accused. I don't think that it is a good idea to separate them by putting them on different shifts. If the accuser is shifted (no pun intended) then it looks like retaliation. If the accused is shifted it looks like punishment and punishment goes to the guilty. If the accused wants to change, it would be OK of course. You must remain nuetral. Just because the person who complained has some difficulties does not mean that it did not occur and just because the other person has no history of this kind of behavior does not mean that it didn't occur. I think that you are on the right track with the conversations. You should cover both bases. To the person making the complaint you say that you cannot confirm that it did, or did not occur, then say that if it did and further incidents occur to let you know. Also let her know that while you are not taking a position that this it did not happen, that a false accusations would impact her own employment, not to mention mess up the life of the person who has been accused. To the accused you say that you cannot confirm that it did, or didn't occur then give the just in case it did scenario so that he knows what can happen if it did occur and you could prove it.

Theresa Gegen TX

I understand why you might not want to put them on different shifts -- It might look punitive to the manager.

On the other hand, this could blow up in your face. This husband could become violent against the manager if she tells him that she wasn't believed and that it has continued. The manager's safety both from more allegations and physical safety may be at issue. Before deciding that you won't seperate them, I would get the manager's input. He might want to be on a different shift because of this.

If you don't seperate them, put the burden on yourself to check back with this employee every few weeks (actually calendar it and talk to her face to face) for the next month or two to see how things are going. If she is lying, she is going to continue to lie. She will claim that the unwanted advances have continued and that now she didn't bother reporting them because she knew the company was going to do nothing. If you check back with her and she reports all is OK, you look like the good guy, and she can't claim that the company did not care about her.

I know this is a tough situation to be in and I wish you and your company the best of luck!

Don D

San Francisco: Will you please email me at [email]trilogydd@aol.com[/email]. Thanks

WT

Item #1, be careful. In some cases where employers have lost in court, action taken after a complaint is seen as punitive to the complainer. If the two are split up, and the complainer gets a less desirable shift or even claims that the shift is less desirable, you can be seen as punishing her for complaining.

Item #2, investigate. Both the complainer and the object of the complaint have rights. If assumptions are made and actions are taken based on a "possible problem", you are on shaky ground. Take action based on what you can prove.

Item #3, get some sand in your craw regarding the husband. If the husband comes to the store again, demand that he leave or be arrested. If he does not leave have him arrested, sign a complaint, appear against him when he is prosecuted. Do not back down.

Item #4, retaliation. Make sure no job action is taken against the woman unless triple documented. Do not permit your accused senior to be a part of ratings, review, or discipline. Good luck.

Crout

[font size="1" color="#FF0000"]LAST EDITED ON 08-16-02 AT 11:53AM (CST)[/font][p]IF the senior manager is in the employee's chain-of-command, then they must somehow be split up.