Sexual Harassment

Sierra

An employee just came forward saying that another employee raped her at work over a year ago, after which she admits that she also had consensual sex with him several times. She has continued to work along side the male employee (and his wife who is also employed in the same dept.)without incident or anyone filing a complaint for over a year. She is not claiming that he threatened her (either at the time of the alleged rape or recently) but now says she is uncomfortable, doesn't want to work with him anymore, and wants us to make it all better! So far we have no witnesses to any inappropriate behavior at work, no evidence to support the rape allegation, and 3 long-term employees with previously good reputations, performance and marriages to protect. Help!

marc

Wow, this sounds like a "Made for TV Movie."

Whether or not the story turns out to be true, you have several initial steps. Formalize her complaint and begin your investigation. This one is likely to get sticky, but make no promises regarding confidentiality - keep it if you can, but do not let it hamper your investigation or your conclusions.

You must interview the alleged perpetrator and you will probably interview people that can back up the stories about consensual sex.

Do you have an EAP? If so, encourage the complainant to arrange for some counseling - if not through EAP, then through whatever other means available.

Finally, Rape is a serious crime. If the EE won't report it, you may need to. Contact the company's attorney for some guidance on this issue.

Be thorough and be prepared for a mess. Stay strong.

Don D

I'm not sure I agree with Marc. She has alleged rape. She has not complained of sexual harassment. I'm not certain you meant that he actually raped her on the premises. If he raped her, he is guilty of a felony and employers typically are not in the business of felony investigations. What behavior has she alleged he is guilty of in the employment context? I would not interview the man based on what you have. I would, though, ask her what behaviors he has exhibited at work that have made her uncomfortable and which of those, if any, she might view in a sexual context. If she says that he did in fact penetrate her at your place of business, I think I would run it by the company attorney before proceding. That's likely to be quite the spiderweb, not your run of the mill sexual harassment charge at work.

I don't know the statute of limitations on the crime of rape and wouldn't get involved in figuring it out. There is an EEOC timeline for filing complaints, however, that she appears to have exceeded.

I do agree that the complaint should be reduced to writing either by her or by you with her signing it. That way she doesn't have the freedom to slide from A to Z if it progresses. Doesn't your policy state a timeline for filing complaints or doesn't it use words like timely or as soon as practicable?

HRinFL

My company has dealt with a very similar issue in the past. The ee, who had a mental impairment, alleged rape at work (she had consented, but due to her imnpairment, her parents argued that she did not have the capacity to consent). They claimed negligent hiring, negligent retention, sexual harassment (the rape), and negligent/intentional infliction of emotional distress. Not a pretty case to defend.

I would recommend a blend of both Marc and Don's recommendations. I believe that you have a responsibility to investigate any violation of your policy, such as a no fraternization policy and take the appropriate action based on your conclusions. I would also review your policy on harassment with the accused ee and explain the importance of actions, etc. Have them sign and date to show that you began your investigation ASAP. In cases like this, I will sometimes place the alleged harasser on administrative leave, if there are concerns that they may compromise the integrity of the investigation. If they are absolved of misconduct, I will review whether they should be compensated for the time off. If they are found to have engaged in the alleged misconduct, I can use the suspension to show I upheld the inegrity of the investigation and then took the appropriate corrective action.

I also agree with Don that it is not the employer's place to investigate rape. Some states have laws that require this type of misconduct be reported. If your state is one of them, inform the appropriate authorities. The sticky part of the equation is that since the ee that complained admitted she had consentual sex with the accused ee after the rape, she also violated the no fraternization policy (if you have one) and would be subject to disciplinary action. I would definitely indicate that discipline is based on the consentual sex that occurred. My question is, if you allege rape, why would you then have consentual sex with the alleged rapist? I think credibility is a big question here. If you investigate, you want to find out if the relationship between the accuser and the accused (or his wife) has recently changed. It maybe a way to get back at them for something else. Also, Don is right that there is a 300 day statute of limitations for claims under Title VII. But since she stated she recently began to feel uncomfortable, she may come back to say that there was a continuation, or a new situation and try to connect the dots. There is case law that is pretty recent that allows claimants to illustrate a pattern of inappropriate behavior past the statute of limitations, if it was ongoing. Get a statement from her on what occurred, how many times they had consentual sex, and what recently changed that made her uncomfortable so that you have her side of the story documented for future use. What a mess!

Sierra

Yes, she alleges the rape happened at work. I don't feel that it's an employer's place to investigate a rape. If she wants that I am inclined to tell her to go to the police. And yes, we do have credibility questions. We don't have a company attorney or EAP. My worry is that once we confront the accused the situation will escalate with the company (me) trying to play judge.

marc

The very first thing I would do is to consult legal counsel. If you don't have one, ask around. HR Hero has a bunch of well-qualifed lawyers associated with the site. I know the ones that do the Nevada Legal Letter have a great reputation and I would not hesitate to contact them in this type of situation. The first thing I would ask them is advice about going to the authorities. This is too sticky to try to do anything to jeopardize the "crime scene." Having your footprints or some third party investigator messing up the works ahead of time would not be well received if the cops are called in.

If after getting legal advice, your course is to go ahead with an internal investigation; given the situation you have described, the potential for explosion, and your seeming unfamiliarity with the investigation process, this is a situation that might call for the investigation to be conducted by an SPHR certified consultant or an attorney hired by your company just for this purpose.

A well-qualified SPHR would be cheaper than an attorney, but you will get what you pay for in either case. Not a time to try and save a couple of dollars.

Finally, I would make that first step yesterday. Don't wait any longer.

dchr9203

She "claims" rape, yet has consensual sex with the man. By her own admission, he's not threatening her. She's filed no other formal (or informal for that matter) complaints of sexual harassment for over a year. Something's hokey about her story. Sounds to me like an adultrous "affair" gone sour. Consult with your legal first before jumping into investigations and accusations. Would be interesting to see how she reacts if/when you do have to formalize it and she realizes that you are now obligated to interview the guy and make him aware of her allegations. Messy, messy.