Harassment Advice Needed

Melanie

OK, here's the scenario.

We had one employee (female) hand another employee (female) pornographic video tapes at work. She told the employee, "my boyfriend thought you might like these videos". The other employee took the videos to their shared workstation and left them on the desk supposedly to show the supervisor and report it. However, before the employee had the chance to report it, the third co-worker sharing the desk arrived at work and saw the videotapes on their shared desk and complained to the supervisor that she was offended by seeing the videotapes and stated that she wanted to file a sexual harassment/offensive work environment claim. The employee filed the claim against the employee who brought the videotapes into the workplace, not the employee who had taken the videotapes and set them on the desk.

After meeting with the offended employee, we called a conference to meet with the first employee who brought the videotapes into work in the first place. The meeting was scheduled and she stated she could not attend because her union rep was unavailable. She was told that if she could not attend the meeting that she would have to put something in writing stating her side of what happened and that the letter was due the next day.

The employee then called off work and had a doctor's note covering her to be off work for the next three weeks due to stress. She refused to call the supervisor directly, she would only call late at night and leave messages on the answering machine/voicemail. The supervisor and myself tried to call her multiple times to speak with her during the leave of absence but she wouldn't answer the phone. She also sent in a letter stating that she wanted to file this stress condition as a Worker's Comp Claim and needed the paperwork. Therefore I sent her the paperwork as requested.

Now that she returned back to work on Monday, she submitted something in writing stating that she doesn't know anything about the pornographic videotapes and that she didn't bring them into work, and then stated that she feels we are only investigating this because she is black.

Because she states that she doesn't know anything about the videotapes, we are holding a conference with the three employees together to find out what happened. We've met with this employee before over other issues, and it always ends up "one word against another" and there is never any proof of what happened other than one word against another. Does anyone have a good strategy to use in getting to the truth versus having to leave issues die at this one word against another.

Also, what do you do if an employee requests Worker's Comp paperwork and then doesn't return them?

Don D

My opinion: Regardless of the fact that person no. 3 filed the charge against person no. 1; if the investigation reveals that indeed person no. 2 did have possession of the videos on company property and did place them on her desk, she is due some discipline. It could range from a verbal counseling to a written warning in my opinion. In order to prevail in a sexual harassment charge, the grievant must assert either that the harassment was one of quid pro quo or that it was hostile workplace environment. Quid pro quo seems to be off the table. Hostile environment will not fly if this is an isolated incident and nothing else exists. I assess the relative importance of the tapes the same as I would a nude calendar on a wall. Must be removed from the workplace for sure and the behavior must not be repeated. Did she actually view the tapes? If not, what offended her? You then have the question of whether or not this would offend a REASONABLE person. If she were to elevate this to a formal EEOC or court filing, I see no way for her to prevail, assuming she only claims to have been offended by the presence of a photographic image on a cassette tape cover that she inadvertently spotted and it was a one-time, non pervasive situation AND the company takes action after its investigation. In order to assert its affirmative defense, the company has the obligation to (1) Formulate a policy, (2) post, distribute and publish it, (3) have a mechanism in place through which reporting (grievances) can take place, (4) conduct a timely investigation following a complaint, (5) take appropriate action following the investigation and (6) provide employee training. Rather than sexual harassment, I think what you have is at best inappropriate conduct and at worst, stupidity. If the investigation reveals nothing else, my action would be to admonish no. 1 and number 2 by restating the company's policy and emphasize the prohibition of sexually explicit images on company property and the consequence of repeating the behavior. Then advise number 3, the complainant of the action taken. I would put nothing in the file of number 1 unless you conclude from your investigation that she did what she was accused of. You can decide that based on your analysis of credibility of the testimony of number 1 and 2. If, however, this is the tip of your iceberg and is symptomatic of repetitive, pervasive things going on in your company you need to consult an attorney.

vmiller MO

I know that this may be hard to believe, but I agree with DonD.

It appears that your situtation is complicated by the fact that the employees invovled are represented by an union. If that is the case, I recommend that you notify the union so that the union cannot maintain that it did not know what was happening. Yes, the union might be an impediment, but most unions now know that they could also be facing liability if they are an impediment to stopping sexual harassment. Further, the union has a right to be present during an investigatory interview of an employee if the employee reasonably believes that the interview will lead to discipline and if the employee asks for union representation. (Your contract may also require such presence).

From my perspective, based only on your fact, it appears that this siutation is escalating beyond its significance. As to the first employee, I would simply tell her not to bring such material into the work place period. I would also tell the second employee the same thing. What these employees want to do with the material off your premises and work time really is not your concern or the concern of employee #3.

I also recommend that you tell your workers' comp carrier the circumstances and instruct them to fight the claim.

Don D

>I know that this may be hard to believe, but I agree with DonD.
>
I admire any attorney who can occasionally make sense and agree with common folk. I also like and will commit to memory your comment that "This has escalated beyond its significance." That's good! Gillian's dilemma of 'reasonable woman' rather than 'reasonable person' begs the question, what if the complainant is a man or has had a sex change? Then, 'reasonable what'? Leave it to the 9th Circuit; same guys who removed God from the Pledge.

Gillian

Had one of those too (case, not me). It settled out of court.

Gillian

This illustrates the difference between the legal definition of sexual harassment and many charges of sexual harassment in the workplace. In order to be sexual harassment from the perspective of court, there needs to be pervasive conduct which reaches the level at which a reasonable person would view it as a hostile or abusive workplace. In California (actually all states covered by the 9th Circuit) we do not go by the "reasonable person" standard but the "reasonable woman" standard, so we have a stricter standard to follow. In our daily work, employees, and we in HR, talk about a sexual harassment complaint, or this or that is sexual harassment. What it really is, is inappropriate behavior which may violate our policies. Much of it would never reach the legal definition of sexual harassment, and in a court situation we might hurt our employer by using the term too loosely. In one case where I testified as an expert witness on behalf of the plaintiff the HR person did not help her employer by calling the incidents (males patting other males on the rear) sexual harassment because patting on the rear was in the employee handbook as examples of harassment. The issue of pervasive (which was a legitimate question)was lost in her testimony and she ended up, in effect, testifying on behalf of the plaintiff.