Sarah shook her head and looked confused. It was clear to James that Alex had left out the critical detail and probably would never tell Sarah.
Sarah and her sister were beginning to subtly stir up problems for Yvonne, causing her to feel uncomfortable. To alleviate the pressure, James moved Yvonne to another equally responsible assignment located in another building. With no opportunity for Alex's wife and sister-in-law to see Yvonne on a regular basis, the situation returned to normal.
James handled this case extremely well with one exception. There was no need for an expanded investigation. First, Alex admitted to the allegation, except for the exposure incident. Second, there were no known witnesses to the alleged exposure incident. Thus, James had no reason to investigate further because no other facts were in dispute. By involving other employees, James unnecessarily jeopardized the confidentiality of the investigation.
James could have supported his decision to terminate on the facts, exclusive of the indecent exposure incident. The absence of Alex's admission to, or witnesses of, his alleged exposure was not a critical "missing link." There was no reason to discredit Yvonne's presentation of these facts. She had no apparent motive to misrepresent the circumstances. In fact, she demonstrated a lack of malice by indicating that Alex needed help and she did not wish to press charges.
Although we support the decision to terminate, some of us feel the company had other options. A less severe approach may have enabled the company to salvage an apparently good employee (and preserved the good will of two others, his wife and sister-in-law). Even the victim in this case acknowledged that the manager was "sick" and needed help. Perhaps probation, coupled with a mandated counseling program and reassignment of either the manager or the temporary employee (which eventually occurred anyway), might have been a more productive resolution for all concerned.
When supervisors have consensual relationships with their employees they are looking for trouble. Not only do most of these relationships deteriorate within the work environment, but they also have a negative impact on other employees as well. Co-workers begin to notice and morale inevitably suffers, potentially creating a hostile work environment.
We all agree that this case reinforces the need for a detailed, well-communicated sexual harassment policy. Most sexual harassment policies deal with harassment by or toward employees and non-employees alike. Thus, the fact that Yvonne was a temp has no bearing on the situation. Additionally, we believe the company owes Yvonne a work environment that is free from retribution from her charge of sexual harassment. Therefore, we think James should have counseled Alex's wife and sister-in-law and taken appropriate disciplinary action with them. Nevertheless, James made the right decision to transfer Yvonne away from a potentially explosive situation.
Finally, James was clearly judicious and mindful of privacy laws in his refusal to discuss the incident with Sarah, Alex's wife. Sarah shouldn't expect to get any more information from the HR manager than any other employee does about a co-worker.
This story illustrates the problems and potential legal liability that can arise when an office romance goes sour. It is not unusual to find sexual harassment situations evolving from formerly consensual romantic relationships that have ended–at least on the part of one of the parties.
Sexual harassment generally consists of unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when an individual's submission to such conduct is made a condition of employment, made the basis for employment decisions, or unreasonably interferes with an individual's ability to perform, or otherwise creates an offensive or hostile working environment. Thus, a consensual relationship between co-workers is not sexual harassment; but when that relationship sours and one party to the former relationship continues to pursue the "no longer interested" other party with unwelcome sexual advances, then the conduct becomes unlawful sexual harassment.
The human resources manager appropriately investigated Yvonne's complaint and took swift action. However, even though the company took swift action, it is still liable for Alex's conduct. We question the wisdom of asking the harassed employee if he or she wants to press criminal charges against the harasser. Such an invitation cannot help the company. One of the primary objectives in dealing with any sexual harassment situation is to try to keep the situation in-house and to resolve the problem without the intervention of outside agencies.
Yvonne's status as a temporary employee did not relieve the company from possible liability for sexual harassment. The company and the temporary help company are most likely "joint employers" of Yvonne. A "joint employment" is a legal relationship that arises between two or more employers with each employer having actual or potential rights and duties with respect to the same employee. A joint employer relationship may be established where (a) the temporary help company pays the employee, pays and withholds payroll taxes, and provides workers' compensation coverage; and (b) the "customer" (in this case, Alex's company) supervises and directs the temporary employee's day-to-day work and activities, controls the working conditions at the worksite, and determines the length of the assignment. Since these two conditions are met in Yvonne's situation, it is arguable that a joint employment relationship exists. Thus, both the temporary service and the company could be liable for Alex's discriminatory conduct.
We commend James on not discussing details of the situation with Alex's wife. Strict adherence to company policy prohibiting disclosure of confidential employee information with other employees or "outsiders" will go a long way toward alleviating charges of invasion of privacy or defamation.
This scenario brings to the forefront another important issue that employers should consider–a nepotism policy. While it is lawful in most jurisdictions to impose restrictions on the hiring of relatives and/or having relatives working in the same department or reporting to each other, employers should familiarize themselves with the applicable law in their locality. This will ensure their policy does not create a risk of marital status discrimination. For example, under California law, an employment decision may not be based on whether an individual has a spouse presently employed by the employer, except that for business reasons, the employer may refuse to place one spouse under the supervision of the other spouse or to place both spouses in the same department, division, or facility.
Excerpted from Sex, Laws, & Stereogypes, by N. Elizabeth Fried, Ph.D.©