The Mistletoe Incident–Part 2

The Mistletoe Incident–Part 2

The Mistletoe Incident–Part 2

The test determined that Chuck never had sexual relations with Darlene.  However, another piece of information surfaced during the exam.  When Chuck was asked if he had ever had physical contact with Darlene, Chuck said, "Well, just once.  It was during our Christmas party two years ago.  We all had a few drinks and were feeling pretty happy. There was mistletoe, so Darlene and I kissed.  It wound up to be a little more passionate than we both expected and maybe I kind of copped a feel in the process–but only once and never since."

Brad and the president dismissed the Christmas incident as inconsequential.  However, they could not condone Darlene's behavior.  Brad explained to Darlene that lying about Chuck's behavior could have cost Chuck his job and was a serious offense.  Even though she may have thought her reasons for fabricating the story were legitimate, the company could not accept her actions, and Brad discharged her.

Darlene filed a sex discrimination claim with the Equal Employment Opportunity Commission.  The EEOC investigator argued that Chuck was never punished for his behavior of kissing and fondling her, but she was discharged for lying.  Therefore, the company demonstrated sex discrimination.

After considering the alternatives, Brad decided the case was not worth fighting and rehired her.  He was careful, however, to place Darlene in a different department where she would not have regular contact with Chuck.

Panel:

We all agree that the company handled the matter too hastily and that Darlene's termination was far too severe.  On the other hand, her false charge of sexual harassment was, indeed, a very serious offense.  This charge could have damaged Chuck's  reputation as well as the company's.  However, Darlene also seemed to be a woman in a great deal of personal trouble.  Certainly what she did was wrong, but her actions also appeared to have been a desperate cry for help.  As an alternative to termination, we first would have counseled her and then placed a stern warning in her file.  The warning would state that any further false allegations of harassment would be grounds for immediate termination.

Second, we would arrange for her to get help through the employee assistance program (EAP).  The EAP should be able to evaluate her personal issues (i.e., beatings from her husband) and refer her to the proper medical and/or community services.  This counseling should be a requirement of continued employment.    Finally, we would recommend transferring her to another department, to a job that fit her skills.  This would allow her to get a fresh start, since she and Chuck would most likely be uncomfortable continuing to work together.

However, we disagree on the relevance of the mistletoe incident.  Some of us feel that Chuck should be re-educated on the company's sexual harassment policy and given a severe written warning as documentation to his file.  Others of us consider this a non-issue. Chuck and Darlene's actions were consensual, happened long ago, and were never brought forward as a claim by Darlene.  Thus the incident lacked relevance to her current allegations.  Furthermore, obtaining the information through a lie detector test was questionable (see legal comments).     

 Regardless of how we view Chuck's guilt or innocence on the mistletoe matter, Chuck and Darlene should be put on notice that they may not discuss any aspect of the case with co-workers.  This warning should be verbal as well as written.  It should indicate that disclosure would be inappropriate and grounds for disciplinary action up to and including termination.

There are a few other items that deserve mention.  All employees are accountable for their behavior on the job and at company-sponsored functions.  They should be mindful of their actions, especially if they consume alcoholic drinks.  To prevent future "mistletoe mishaps," the company should consider changing its policy about allowing alcohol at company-sponsored events. 

Also, it was ill-advised for Brad and the president to leave Chuck and Darlene in a room alone together to "discuss the incident between themselves."  This action may have had negative consequences.  Either Darlene or Chuck may have been threatened, bought off, physically hurt, or further harassed by the other. 

Legal:

One of the issues in this story concerns the use of a lie detector test in the workplace.  Federal and state laws regulate the use of lie detector tests on applicants and employees.

Brad most likely subjected Chuck to a lie detector test illegally under both federal and state laws.  Except in limited circumstances, the Employee Polygraph Protection Act of 1988 generally prohibits private employers from using lie detector tests for screening applicants or testing current employees.  An employer may test an employee if the employer reasonably suspects the employee's involvement in workplace theft or some other incident causing economic loss to the employer.  Moreover, under the Employee Polygraph Protection Act, an employer is prohibited from making employment decisions such as termination, disciplinary action, promotions, or denial of employment solely on the basis of a polygraph test result.  In a workplace theft investigation, the employer may request that an employee submit to a lie detector test if (a)  the employee had access to the property allegedly stolen, (b) there is reasonable suspicion to believe the employee was involved in the theft, and (c) the employee is given a written statement as to the reason for testing certain employees.

Employers need to remain mindful of state and local polygraph/lie detector laws, which may be more restrictive than the federal law.  For example, while some states limit themselves to merely regulating the licensing of polygraph examiners, other states, such as Delaware, Hawaii, Massachusetts, Michigan, Oregon, and Rhode Island, prohibit all use of the polygraph in private sector employment.

Some employees have successfully sued their employers on the grounds that polygraph testing violates privacy rights under the U.S. Constitution and some state constitutions, or for invasion of privacy, defamation, and intentional infliction of emotional distress.

We also question the wisdom of rehiring the employee after she falsely accused her manager of criminal and illegal activity, especially since it is clear that she was not discriminated against because of her sex.  Nothing in the story even suggests that the Christmas kiss was unwelcome by Darlene.  Moreover, that single episode is probably time-barred in any event.

One Comment

  • Wendy Danbury, SPHR says:

    April 30, 2017 at 4:37 am

    The fact that Darlene’s safety was of no concern to the company is a sad commentary on the casual misogyny so many of us deal with in society, whether at home or in the workplace. The company would have done well to follow the advice of the panel to provide an EAP referral and other social support, rather than terminating the victim of domestic violence (who lied under duress, and apparently had no other history of misconduct).
    I’m very surprised the panel didn’t address the potential danger posed by the violent husband, who now knows where Darlene’s manager lives, and could return to take revenge on Chuck. Perhaps it didn’t occur to Chuck to worry about it, but the president and/or HR leader should be thinking about the situation from different angles to reduce risk to the company.

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