12 Jan Case Study: Three Sexual Harassment Scenarios
On a regular basis, I will try to highlight some cases, scenarios or other methods of demonstrating some topics of concern to small business owners and hopefully provide some case study based examples.
This week, I have been talking about what is sexual harassment, so I thought the best way is to discuss a topic that is very fact specific is to discuss some factual scenarios.
A female worker in a small company of 12 employees is asked every 2-3 weeks by a male coworker (not a supervisor) to go out for drinks after work. The invitations are never more than simply an invitation. The female employee has always politely declined with phrases such as “not today” or “maybe next time” and similar refusals. The female employee is known by all in the company, including the male coworker, to be dating someone outside the office. The repeated requests have started to make her uncomfortable, but she has not formally reported her coworker’s conduct. Is this harassment?
Answer: Maybe, and certainly worth an investigation. The conduct while not overtly sexual, is between members of the opposite sex and could be interpreted as harassment. There is certainly a risk here. The conduct does make the female employee uncomfortable and could be impacting her job performance. But the grey area is that the female has never explicitly told the coworker to stop asking her so she has not made it known that the conduct is unwelcome.
The Twist: The male coworker invites all of his coworkers, male and female, out for drinks every 2-3 weeks for happy hour and the group goes to a local pub to have a drink or two. Not everyone attends every time, but most of the coworkers do go regularly. All other behavior by the male coworker is appropriate, he just likes to socialize with his coworkers after work hours. In this twist scenario, the invitation is clearly not simply directed at the one female employee and despite her belief that it is harassment, it is not harassment. The male coworker should probably get the hint a little better that his coworker doesn’t want to go down to the pub with their coworkers and stop asking, but it isn’t harassment.
The local delivery driver comes into the office at least every other day with deliveries. The driver takes a liking to the new receptionist who is signing for the packages and asks her out once. The receptionist is not interested and says no. But our wannabe Don Juan takes it upon himself to woo the new receptionist. While not every day but usually once a week or so, the driver brings candies, flowers, cards, small stuffed animals just for the receptionist. The receptionist is not interested at all. Is this harassment?
Answer: You bet it is and if the receptionist tells HR or a supervisor (which I hope she does) or a supervisor notices the activity, then the company has an obligation to act. One way to do this is to have a supervisor or other manager/owner of the company substitute for the receptionist when the driver comes in one day. You speak to the driver and make clear that his amorous efforts are not welcome by the receptionist or by the company; they are to stop, and if they continue, you will report the matter to his employer. This action may allow the driver to save face, end the behavior and allow the driver to avoid a potentially job-killing report to his employer. Alternatively (or if you feel you need to), you can skip the pleasantries and simply ask for a new driver, but be prepared to answer a lot of questions by the driver’s bosses about why you are requesting a new driver.
The Twist: What if the delivery driver is a woman? Remember as I said previously this week, the sex of the harasser and the victim are irrelevant for the purposes of sexual harassment. The conduct is sexual in nature,pervasive, ongoing and is not welcome. It is harassment and should be handled as described above.
You own a restaurant and the back of the house staff, the cooks, dishwashers, prep cooks, are a rowdy bunch. Although they cannot be heard from the front of the house by patrons, they are loud. Crude, sexually-based jokes, insults and jibes abound. None of the back house staff, which include male and female workers, ever complain, but you notice that the servers and hostesses all seem pretty shaken and upset by the behavior, particularly when the conduct is more extreme than normal.
Answer: You have a hostile workplace claim brewing and it is past time to clamp down on the behavior. This is not your typical “back of the house/front of the house” spat common in the restaurant business. The kitchen staff is setting your business up for a very expensive lawsuit. Talk to the back of the house staff and let them know the behavior has to end and further conduct like that will be disciplined. Conduct a group counseling and then individual counseling, particularly for the leaders of the group. Then talk to the front of the house staff and let them know in no uncertain terms that such conduct is not going to be tolerated, it should be reported to you, and if it happens to them or by them, it will be dealt with accordingly.
The Twist: The executive chef, who is also your business partner, acts the same way as the rest of the back of the house staff. The severity of the problem just got one order of magnitude worse for you. First, your partner is an owner and thus subject to liability as a supervisor of all the staff. His behavior, if he is acting inappropriately with the front of the house staff, is a massive potential liability. Next, his actions appear to condone the hostile work environment activity, which increases the risk of liability not to mention damages. You will need to have a long talk with your business partner, probably with legal counsel in the room and then take all the actions discussed above.
- Management and ownership need to be trained to be able to spot potential problems and then to act in a manner responsive to the problem.
- Management and ownership need to be careful not to overreact. While harassment is serious and should be taken seriously, often a stern written warning stops the behavior. As discussed in scenario 2, overreaction can cost people jobs (which could raise other risks).
- Management and ownership need to be aware that not every interaction is necessarily going to be harassment. The situation may still need addressing from a human resources perspective, but it doesn’t necessarily have to be treated as harassment.
As always, if you have questions about whether a factual scenario is sexual harassment, please consult legal counsel.
What factual scenarios have you encountered that were sort of on the borderline of harassment? What did you do? What would you have done differently in hindsight?