When you get hints of inappropriate activity (e.g., a boss “hitting” on a subordinate or racial teasing) but no evidence, no corroboration, and no complaint, should you act? Yes, says today’s expert.
The bottom line is that, when faced with a “hint” of inappropriate activity, you absolutely should act, says attorney Thomas N. Makris, SPHR. This is no time to bury your head in the sand, he says, adding that an employer has an affirmative duty to take reasonable steps to provide a workplace that is free from sexual and other illegal harassment.
Information about harassment or racial teasing, even if it comes only “through the grapevine,” puts you on notice of situations that may be illegal or contrary to company policy—or both. If you are getting hints, but no complaints, you need to not only address the specific situations but also do additional training of the workforce as a whole.
Makris is counsel at the Sacramento, California, office of the law firm Pillsbury Winthrop Shaw Pittman LLP.
Potentially Harassing Behavior
Let’s take the case of the situation involving the manager hitting on the subordinate. Start by interviewing the subordinate to establish what, from his or her point of view, is happening, says Makris.
Yes, and They Are Unwelcome
If the subordinate tells you that the manager has indeed been making sexual or romantic advances and that those advances are unwelcome or are tied in anyway to terms and conditions of employment, then this as a potential sexual harassment situation. You will need to conduct a full investigation and take appropriate disciplinary and remedial action.
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Yes, but Good-Natured Banter
If the subordinate confirms the conduct but tells you that it was good-natured banter and not offensive, you still need to address it as a situation potentially involving harassment or violation of company policy. There may be other employees being subjected to the same conduct who do find it offensive. Even if no others are involved, you will need to investigate.
After a full investigation, discipline may be appropriate.
It Never Happened
If the subordinate denies the conduct, continue the investigation until you have run the issue to the ground. The subordinate may be hesitant to confirm the conduct because of fear of retaliation or a desire not to make waves. Work your way back up the grapevine from the person from whom you heard the rumor to the person who witnessed the event and started the chatter. Again a full investigation is necessary.
Consensual Relationship
If the subordinate confirms the conduct but tells you that the there is a consensual romantic relationship, then the current situation probably does not involve illegal harassment. Still, you need to address the conflicts of interest and potential violations of company policy created by such a relationship between a manager and a subordinate.
Reassignment of one of both of the employees to sever the reporting relationship is appropriate. Termination of one or both employees for violation of company policy may have to be considered.
You should also interview other employees in the department to see if there has been any favoritism or any perception of favoritism. Finally, if both parties stay in the workplace, take steps to protect the company from issues that may arise if the relationship turns sour in the future.
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Potential Racial Teasing
Now to the example of racial teasing. The path will be similar to that for the rumored harassment. Conduct a full investigation to determine the facts. Evaluate whether the conduct is a violation of company policy or is otherwise potentially offensive; if it involves racial jokes or epithets, it almost certainly is.
Take appropriate steps to discipline the employee(s) responsible for the offensive remarks, and take steps to prevent this type of conduct in the future and to prevent any form of retaliation.
In the next issue of the Advisor, the bigger question: In the two examples, why weren’t the issues formally reported? What training might be required?