Sticky Situation
lclarke
3 Posts
I was informed today by one of my managers that one of his employees was sexual assaulted by a coworker back in September. The two employees were working late and pulled an all nighter. When it was time to leave the office, the female employee was concerned with her 30 min drive home given that lack of sleep she had. The male employee told her she could crash on his couch if she wanted and she agreed. When the arrived at his home, he mentioned that there was a spare bedroom she might find more comfortable. After falling asleep, she awoke with him sitting on the edge of the bed with his hand up her shirt. She told him it was inappropriate and to stop which he did. She left his place returned to the office. She informed her manager that the male employee had made a pass her but did not want anything to happen to the male employee. The manager tried several times to learn more about the details but she did not want to dicusss it further. Since then the manager has carefully watched the male employee's behavior and nothing transpired. The female employee called her manager late Wednesday night to tell him what really happened with the male employee.
This morning I spoke with the manager and his boss to discuss the situation and see if anything can be done on our part. The manager does not want the employee working for us given that he now does not trust him and afraid of what could happen with other female employees. Given that this did not happen at a company office, what options do we have a company?
Comments
There are a few things to consider.
First, there is no evidence to suggest that the complainant is telling the truth. I'm not saying she is or is not. I'm just saying that there is nothing available to demonstrate that her words represent the facts. Likewise, it doesn't sound like anybody has asked the alleged perpetrator for his version.
Second, I agree with HRgsf that the complainant has put your company on notice. Going back to the original complaint, the company was put on notice. The complainant's request that "nothing be done" doesn't absolve the company from taking appropriate action, beginning with an investigation. Some companies compel cooperation and confidentiality in the course of the investigation to prevent this sort of "I don't want to get anybody in trouble" business from interfering with the company executing its responsibilities.
Third, and this is where I differ the most: this is not an issue of harassment. This is an allegation of assault that occurred between two employees off company property during an event that was not requested, suggested, or otherwise promoted by the company (assuming the alleged perpetrator is not a member of management). I've been in this situation a couple times. Because the complainant is making an allegation of violent criminal activity, I would call the police.
In my opinion, it doesn't really matter that the incident took place off company premises. The fact remains that the incident occurred between two of your employees and one of the employees informed a manager at your company. That triggers your responsibility under sexual harassment laws (sexual harassment can, for the record, include physical touching/groping) to conduct a full investigation. Under the law, once a manager is aware of potential sexual harassment, you have an obligation to investigate and remedy the situation. This means talking to the alleged victim and the perpetrator, while also respecting confidentiality. Once you know all the facts, you can then decide what the best course of action is. I would also immediately call your attorney to get his/her input on what you should do.
I do agree that an investigation should have taken place when the manager got the first complaint. It is an employer's responsibility to prove they investigated and took appropriate action when a complaint has been stated....even if the complaintant asks that "nothing be done". The employer doesn't have to prove (beyond a reasonable doubt) that SH actually happened to be able to terminate the employee. But they also can't work on information that they know is untrue.
While SH laws may not extend outside of the workplace (more dependent on state laws than federal), this situation as stated may have led to a Hostile Work Environment (not saying that the details imply that but that it could).... Some states do protect private behavior outside the workplace. Others allow it to be used as a reason to terminate if it affects the work environment.
"Hostile environment sexual harassment occurs when unwelcome sexual conduct unreasonably interferes with an individual's job performance or creates a hostile, intimidating or offensive work environment even though the harassment may not result in tangible or economic job consequences, that is, the person may not lose pay or a promotion. Employers, supervisors, coworkers, customers, or clients can create a hostile work environment. " Quotes from : http://www.de2.psu.edu/harassment/legal/ We would need to have more information to determine whether HESH exists.
Certain states, including California, do allow for SH to be illegal even when it occurs outside the workplace...but do place limits on what is considered legal SH.... http://www.discriminationattorney.com/harassno.html
Honestly there are times where I would seek an attorney's counsel and this would be one of them.
I agree that you need to investigate this quickly.
One thing that I would add is that you need to do some retraining with your managers. This should have been brought to your attention as soon as the manager found out about this in September. Just because someone says "I want to tell you something but don't want you to do anything to the person" doesn't mean that the company shouldn't take action. As a company you have an obligation to look into this incident since you have been put on notice about it.
The other thing is that I agree with TXHRGUY that this seems on the surface to be a situation that would possibly involve the police if the female wanted to pursue that option. After you do the investigation I would contact your corporate attorney before going any further. If the incident was not at work and not a work sanctioned event then this is off-duty time incident. As long as you have done your investigation and documented all the findings then let the attorney tell you what you should do next. If what she says is truly what happened then I don't think the employer would want to get involved since it is not a work related incident.