I'd take two steps to solve this... the second being necessary if the first doesn't work.
Approach your boss and let him know your thoughts. Take him to the side one day and say, "Hey... I need to talk to you about something." Of course, he'll chuckle like nothing's happening. Just tell him it's making you and your coworkers uncomfortable. Also let him know that if he doesn't stop, you'll feel obligated to report to a higher authority. If he doesn't let up and tries to make it an "In Your Face" ordeal, then do what you said you would - let a higher managerial figure know the situation.
I have a different take on this.
I'm generally against "or else" strategies. Either go over his head or confront him directly but don't confront and threaten to go over his head.
Personally, unless I had a really strong and positive relationship with my boss, I'd go over his head so that he wouldn't know where it was coming from. Let HR fix this for you, it's what they're there for.
[quote user="jonijohnston"][...] Regardless of whether you take it to HR or confront your boss directly, he is going to find out who complained. [/quote]
You have no basis for making that statement.
If the behavior is as public as OP stated, anybody could have made the complaint. However, if the behavior is not as public as stated or not of the magnitude stated ("making out"), or if OP is the only person who has made looks or gossipped about it, then the boss may be able to put 2 and 2 together. If OP has avoided going public with his or her distaste, then HR would have to do something pretty incompetent to let it out. On the other hand, if they do let it out and the boss makes even bigger mistakes, that could work in OP's favor when the settlement is negotiated.
I think you need to go to HR about this issue. At the very least, if the company has a good code of conduct policy then this could be fit in to inappropriate behavior under that policy.
What position is your boss within the company? Does he have a boss or his he the head of the company?
[quote user="jonijohnston"]Here's the basis for that comment. If the person goes to HR, they are making a complaint. Doesn't the person whose been complained about have the right to know the nature of the allegations against him, including who made them? From my expert witness experience, the "prompt, thorough and fair" hallmarks of a good investigation include being able to respond to know what the person has been accused of and by whom. [/quote]
This is a common misperception about "due process" at work versus "due process" in legal proceedings. There are a lot of rights accorded you as a citizen when it comes to government action. Many of those rights do not apply in the work place. You do not have freedom of speech in the workplace. Your employer can make you say "I'm not a vegetarian because I like animals, I'm a vegetarian because I hate plants" every time you pass through a door and fire you if you do not.
In the course of an investigation, the Company's obligation is actually to protect the complainant, which means maintaining confidentiality to the extent practicable to conduct a reasonable investigation. You do not have a right to confront your accuser in a workplace investigation and it is in the Company's best interest to prevent the accused from knowing who their accuser is to reduce the potential for claims of retaliation. The accused has no "right" to know what they have been accused of except to say it's hard to get their side of the story without some understanding of what the issue is, which sometimes leads to the accused knowing who their accuser is. In this case, the complainant is not a direct victim of the actions of the accused. They are an offended third party which, given the apparently public nature of the behavior, could have been anybody.
You don't really have a right to confront your accuser in a workplace investigation. In fact, the employer has a superior duty to protect the accuser, in part because that helps reduce the probability of a retaliation claim resulting from the complaint. Although workplace investigation shares similar goals with legal proceedings, such as "getting to the truth" and "doing the right thing", the process has a wholly different set of constraints and far fewer rights attributed to those involved.
Again, I disagree. I spoke with an attorney colleague of mine and here's what she had to say about the rights of the accused in a sexual harassment investigation.
"If the accusations against you were for harassment based on sex, race or other protected characteristic, you do have the right to know who your accusers are under the new EEOC Guidelines. The Guidelines provide that an employer should ask the following questions when conducting an investigation:
Obviously, you cannot have a response to allegations if you don't know what they are. Similarly, you can't know why a complainant might lie if you don't know who the complainant is."
If I enter "investigation guidelines" into the search box at EEOC, I get:
Searching for investigation guidelines. No documents matching your query were found. For suggestions on how to broaden your search, see Search Tips.
Can you direct me to the EEOC document that provides guidelines for how employers should conduct investigations?
As I said earlier, sometimes revelation of the allegations allows the accused to put 2 and 2 together. In the case given here, I don't think that's likely if you take the report at face value ("making out in public") and don't read into it that OP and only OP has had any sort of reaction to this behavior that may have been seen by the perpetrator.
In a brief review, I found nothing in the SHRM toolkit that suggests an employer should inform the accused of the identity of their accuser but I can find recommendations to the contrary.
In a survey of 2 employment law attorneys with whom I have regular interaction, neither of them are aware of these new guidelines or of any right of the accused to know the identity of their accuser in a workplace investigation.
Even if there is a new set of guidelines out from the EEOC on how an employer should conduct an investigation, and those new guidelines recommend informing the accused of the identity of their accuser, that is a far cry from any sort of right of the accused or statutory or even regulatory obligation of the employer.
I have emailed my colleague to see if she can send me the guidelines. In the meantime, I found this at http://www.ed.gov/ under Revised Sexual Harassment Guidelines:
FERPA is also relevant when a student accuses a teacher or other employee of sexual harassment, because written information about the allegations is contained in the student's education record. The potential conflict arises because, while FERPA protects the privacy of the student accuser, the accused individual may need the name of the accuser and information regarding the nature of the allegations in order to defend against the charges. The 1997 guidance made clear that neither FERPA nor Title IX override any federally protected due process rights of a school employee accused of sexual harassment.
Several commenters urged the Department to expand and strengthen this discussion. They argue that in many instances a school's failure to provide information about the name of the student accuser and the nature of the allegations seriously undermines the fairness of the investigative and adjudicative process. They also urge the Department to include a discussion of the need for confidentiality as to the identity of the individual accused of harassment because of the significant harm that can be caused by false accusations. We have made several changes to the guidance, including an additional discussion regarding the confidentiality of a person accused of harassment and a new heading entitled "Due Process Rights of the Accused," to address these concerns.
Investigations in an education student/teacher context are very different from the employment context, so I would NOT rely on Title IX (or what I assume is the state FERPA). The interests and rights at stake are just very different.
I do believe, however, that although employers should make every attempt to protect the privacy of the complaining employee, the employer is obligated to tell the accused all of the details of the accusation against him/her so that the accused indivudual can defend him/herself and formulate a response to the specific accusation. Usually, this will result in the de facto revealing of the accuser's identity. THAT IS WHY THERE ARE VERY POWERFUL ANTIRETALIATION PROVISIONS IN TITLE VII AND STATE ANTI HARASSMENT LAWS. Even if the accused is told the accuser's identity, he/she is prohibited from retaliating (or doing so is a violation of the law, easier to prove and generally, the reason that the accused "goes down").
I do believe, however, that although employers should make every attempt to protect the privacy of the complaining employee, the employer is obligated to tell the accused all of the details of the accusation against him/her so that the accused indivudual can defend him/herself and formulate a response to the specific accusation. Usually, this will result in the de facto revealing of the accuser's identity. THAT IS WHY THERE ARE VERY POWERFUL ANTIRETALIATION PROVISIONS IN TITLE VII AND STATE ANTI HARASSMENT LAWS. Even if the accused is told the accuser's identity, he/she is prohibited from retaliating (or doing so is a violation of the law, easier to prove and generally, the reason that the accused "goes down").[/quote]
Educational institutions generally take or are wholly funded by state or federal money, which brings a lot of baggage on board that is unrelated to other sorts fo employers and, for most contexts, students are not employees of teachers, instructors, professors, etc.
I don't always find that the entirety of the allegation needs to be given to the accused. As a matter of practice, it's about the last thing I discuss when interviewing the accused so that I can get information I need in advance of them having the details and thereby being better able to frame and color their replies to me. The person I am most likely to meet with on multiple occassions is the accused. Consider this. Sometimes, you have a single act allegation that is specific to a time and a place. Therefore, before going into all the messy details, it would be helpful to establish precisely where the accused was when the alleged activity took place. If the person says they were elsewhere at that time and can substantiate it or provide a witness list, then it's not clear that you have to tell them about the rest of the allegation while you check out their story. You can still suspend the accused with pay while you are sorting this out.