Sexual Harassment or Not?

Scenario:

On a Monday morning, an employee complains that while attending a movie on Friday night, he was sexually harassed by a female co-worker. The employees were not on a date, and the outing was not a company sponsored function?

How would you guys handle this?


Comments

  • 17 Comments sorted by Votes Date Added
  • Well, remember that in order for it to be sexual harassment, it has to be behavior that is offensive to a reasonable person, is sexual in nature, and interferes with the employee's ability to do his or her job.

    In my opinion, and without knowing all the details, I wouldn't cry harassment yet - is it interfering with your EE's ability to do his job? This gets into that realm of policing what goes on after work. You may just want to send out a nice, kind memo from HR reminding people of any anti-fraternization policies you may have, and that actions that happen outside the scope of the office may become inside the scope of the office if they begin to interfere with work.

    Tell your EE that if the behavior occurs during work time or begins to interfere with his ability to do his job, to let you know and you'll address the matter further. Otherwise, it is outside the scope of employment and you don't need to be getting involved.

    That's just my opinion - with more info, I may change my tune.
  • Start by asking him if there were any related incidents of the same nature while at work. Ask questions to be sure to see if anything comes out. Ask him what he expects you to do as a result of his complaint. Is he merely warning of a possible problem or does he expect some kind of action? Ask if there is any history between these two people. If you are certain that nothing happened while they were on the clock and not on company premises, there isn't much you can do. Tell him if there is the slightest problem while at work then you can respond, otherwise his only course of action would be to file a police report.
  • In order to give a better answer, I think it is important to know exactly what happened. Sexual harassment to a HR pro is one thing and being sexualy harassed at the movies could be a completely different scene.

    I think you need to get the additonal information before you can decide what action to take, if any.
  • I agree. Did she just ask him out or did she make explicit suggestions? Is she someone who works in the building, someone who works in his department, or a supervisor?

    Your position if she is someone who works on the same floor and asked him out is completely different than if it was his supervisor making explicit suggestions.

    You need to know what happened. If it doesn't sound like much then you can ask him to make sure he lets you know if anything more happens, especially if it is at work. I mean, if she just asked him out and he didn't like her so was offended, he is seriously over reacting. However, if she is asking him out everywhere he goes and he felt she may have followed him to the theater, that might be another thing. You need more facts to make a good determination.

    Good luck!

    Nae
  • Like others have said, you need to know what happened but I'll bet you Ray's pink couch that this wasn't sexual harassment.
  • Whoa, there. You guys really need to be careful about this attitude that if the alleged harassment didn't happen during work hours then "it is outside the scope of employment and you don't need to be getting involved" or that "there isn't much you can do" and "his only course of action would be to file a police report." The employer's obligation to maintain a work environment that is free from sexual harassment is not limited to events that happen during work hours. If that were the case, then harassers could get around workplace sexual harassment laws by just doing all their harassing outside of work. Off-the-job sexual harassment can certainly be severe and pervasive enough to interfere with the working conditions of a reasonable person (consider the situation where a supervisor calls an employee at home, after work hours and says, "Sleep with me or your fired." A judge or jury isn't going to be sympathetic to the "it happened off the job; there wasn't much we could do" argument). There are several other examples I can think of of off-the-job harassment that could create an intimidating or hostile work environment for an employee - an easy one to imagine is a coworker who stalks an employee after leaving work. Even if the employee does nothing wrong while on the clock, that after-hours behavior can be very intimidating.

    Anytime an employee comes to you with a complaint of sexual harassment, you should be conducting an investigation immediately, regardless of whether the alleged harassment occurred on or off the job, and regardless of what your suspicions are about the seriousness of the alleged harassment. Sure; it may be that the behavior didn't rise to the level of actionable sexual harassment under the law, but you don't know until you investigate. And since the employee has come to you with a complaint, you should assume that the employee considers the behavior serious enough to potentially to interfere with things at work.

    Perhaps it helps to think of it this way: if you do the investigation, you're playing it safe. If you dismiss the employee's complaint without investigation, and the employee files a charge of discrimination, the employee can argue that he put you on notice that harassment may have been occurring, and you failed to fulfill your duty to investigate and/or take prompt corrective action. You're better off going with Option 1.

    Kimberly A. Klimczuk, Esq.

    SKOLER, ABBOTT & PRESSER, P.C.
    Editors of the Massachusetts Employment Law Letter
    (413) 737-4753 Email: [email]kklimczuk@skoler-abbott.com[/email]

    This message is not intended as legal advice and does not establish an attorney-client relationship. Readers of this email are encouraged to contact their labor and employment counsel for further information.
  • >
    >Anytime an employee comes to you with a complaint of sexual harassment, you
    >should be conducting an investigation immediately, regardless of whether the
    >alleged harassment occurred on or off the job, and regardless of what your
    >suspicions are about the seriousness of the alleged harassment. Sure; it may
    >be that the behavior didn't rise to the level of actionable sexual harassment
    >under the law, but you don't know until you investigate. And since the
    >employee has come to you with a complaint, you should assume that the employee
    >considers the behavior serious enough to potentially to interfere with things
    >at work.
    >

    Kim,

    Would you give the same advice in regard to any type of harassment/hostile claim? Example, an employee reports to another supervisor that his/her supervisor is using racial slurs. The supervisor asks the ee if they want to file a compliant. The ee responds that they don't find it offensive and they don't want to file a complaint. They just thought somebody ought to know.

    Thanks,

    joannie
  • I believe all of us said that without more information, we can't really give solid advice. For all we know, this was flirting and not harassment. This is why more info is needed. I doubt any of us would negligently ignore a legitimate harassment complaint.
  • Kim, I think we all said to ask questions, check it out, find out the facts. A couple even stated explicitly more information is needed to really give a good answer. Seems we are all saying essentially the same thing.
  • >Kim, I think we all said to ask questions, check it out, find out the facts.
    >A couple even stated explicitly more information is needed to really give a
    >good answer. Seems we are all saying essentially the same thing.

    While I recognize that several people suggested looking into the issue further, what concerned me was quotes like, "If you are certain that nothing happened while they were on the clock and not on company premises, there isn't much you can do" and the suggestion that if the alleged harassment didn't happen at work, then the employee's "only course of action would be to file a police report." That does not accurately reflect the employer's legal obligation in response to an allegation of off-the-job sexual harassment, and I wanted to make sure that people did not get the impression that it did.



  • [font size="1" color="#FF0000"]LAST EDITED ON 02-20-08 AT 12:55PM (CST)[/font][br][br]Interesting dilemna.

    My struggle would be with this happening outside the workplace and at a non-company sanctioned function. That potentially opens a Pandora's box for employers.

    I can understand getting involved if it continued and was brought into the workplace but have mixed views when it's the situation as stated. Would also need to understand how closely the two interact at work as part of their job duties.

    As others have commented, it would be good to have a frame of reference for what was said or done as the advice could differ.
  • 1. A single act should not rise to "harassment'
    2. It was outside the scope of employment, not a "hostile work environment" as I see it.
    3. Investigate, yes, to create a file. Can not ignore any complaint even the 'silly' ones.
    4. Did the male employee allege the act was "untoward" or "unwelcome"?
    how was the movie, otherwise???
    The Colonel
  • Remember, there's two types of sexual harassment - hostile work environment and quid pro quo. Although what happened may not constitute hostile work environment, it is very easy to see how a quid pro quo situation may have happened!
  • What concerns me was Rockie's actual response.

    "Does she have a sister?" is NOT an appropriate follow-up question, Rockie! Shame on you!

    ;)
  • Huh? Where did I say this in my post????


    The way it was actually handled was I asked the employee if this behavior was going on in the workplace and they felt they were being harassed at work? They said they did not and it had only happened outside of work this one time. I advised ithis was outside the scope of the workplace and it did not occur at work or if she did not feel threatened at work, then it did not appear to be harassment. I advised her if this behavior continued outside the workplace and she felt threatened by it, she should consider taking it up with law enforcement.

    I called the alleged "harasser" in and advised that it had been reported that he had harassed this employee outside of work and if it carried over into the workplace, there would be an issue. I also advised him there may be an issue if this employee decided to press charges against him. I suggested to him if he was engaging in this behavior, he needed to cease it for his own good.
  • ther was a company that had a policy "sexual harrassment will not be reported but it will be graded."
    that's probably not good!

    The Colonel
Sign In or Register to comment.