“Ask Sheila”

Dear Sheila,

On a Monday morning, one of our female clerical employees came to the Department head in tears. She said that on Saturday night, she was with friends at a club, and she ran into her male supervisor who asked her to dance. Both had been drinking. She accepted the dance, and on the dance floor, her supervisor put his hands on her in a sexual way. When she tried to remove his hands, he pulled her even closer and kissed her. She pushed him away and he walked off appearing angry and embarassed. Now, at work, she says she is extremely uncomfortable around him, doesn’t feel like the relationship can be professional, and is also worried that her rejection of him might affect her upcoming performance evaluation.

I want to tell her that what happens on her own time is not something that we, as her employer, should be involved in. Do we have to do anything else?

Signed, Minding my own business

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Dear Minding my own business,

Unfortunately, sitting on the sidelines in these situations can expose your organization to serious legal liability, even though the supervisor’s alleged conduct occurred while off-duty and away from the workplace.

As an employer, you have a duty to ensure that employees are able to work in an environment free from sexually harassing or inappropriate conduct. It is important that the alleged harasser is not just a coworker, but instead a supervisor, because a supervisor’s sexual conduct gives rise to an employer’s strict liability for his actions, and possible quid pro quo harassment, since the supervisor has the ability to make employment decisions that affect his subordinate and has the potential to base those decisions on the employee’s rejection of his sexual advances. Sexual advances by a supervisor are treated differently under the law, even when completely off-duty, because the supervisory relationship, and any resulting intimidating effect, continues back into the workplace. This dynamic makes off-duty conduct become workplace harassment.

As a result, a supervisor who makes a pass at his employee, especially one that was unwelcome, has engaged in inappropriate behavior that may be misconduct, regardless of where the incident occurred, and should be subject to discipline or even termination. In contrast, if two lateral coworkers have a similar off-duty incident unrelated to work (not at a work-related event or conference), the employer may stay out of it unless the unwelcome behavior continues in the workplace, or violated another policy, such as one prohibiting criminal action.

Once aware of the complaint, investigate promptly and thoroughly, following any anti-harassment policy and investigation procedure you may have. To investigate, you should meet with the employee and supervisor separately to get each person’s side of the story, determine if there were any witnesses, and if so, interview the witnesses, and determine if there is any evidence that would corroborate either side’s story, such as photos, text messages, or posts on social media. If there are no witnesses or evidence of what occurred, it could ultimately come down to a “he said, she said” situation, and conclusions would be based on their credibility.

If you find that the allegation is true, the supervisor should be disciplined, reassigned, demoted, or terminated. Bottom line, the supervisor can no longer supervise this employee; not only is she uncomfortable in the workplace and feels sexually and physically threatened by her boss, but future employment actions of the supervisor will also now be tainted and could be considered a result of the employee’s complaint or rejection of the sexual conduct.

Reassure the employee that you take her complaint seriously and that the organization does not tolerate sexual harassment or retaliatory behavior. Remind the employee of the employer’s anti-harassment policy, including any complaint procedures. Finally, if the supervisor remains employed after the investigation, whether because of an inconclusive finding or a decision not to terminate, check in with the employee regularly after the incident to determine if there are any developments or if the incident has reoccurred, and to ensure she feels that her complaint has been adequately addressed.

You should train employees regularly on workplace harassment, and make sure that supervisors and managers are aware of the potential pitfalls and consequences of relationships and off-duty partying with subordinates. Management should understand they will be held to a higher standard with regard to their behavior around their employees, both on or off duty.

“Ask Sheila” is prepared by Sheila Gladstone, the Chair of the Employment Law Practice Group. If you would like additional information or have questions related to this article or other matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.