In today’s Advisor, we’ll propose several scenarios that will help with your anti-harassment training.
Jack and Jill
Jack, a manager, asks Jill, one of his supervisors, out on a date. She says “No,” he never asks her again, and their business relationship continues as it was. Any problem?
[Not immediately, but what if Jill suffers some negative employment action—a demotion or a failure to get a promotion, say—and claims it’s because she turned Jack down? Let’s hope Jack has good, business-related, documented reasons for his action against Jill.]
Jack, a manager, asks Jill, one of his supervisors, out on a date and she says, “No thanks, I’m busy.” He asks again. And again. She keeps refusing. Any problem?
[No one knows—except the jury—how many times is too many times, but eventually, this is going to be harassment. And, once again, if Jill suffers a negative employment action, she may charge retaliation.]
Jack, a manager, asks Jill, one of his supervisors, out on a date and she says “yes.” They develop a relationship, get married, and live happily ever after. Any problem?
[Not for those two, but other employees may charge favoritism. And the employer will probably want to move one of them to a new job, which could cause problems of its own (“You made me move because I’m the woman.”]
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Jack, a manager, asks Jill, one of his supervisors, out on a date and she says “yes.” They develop a relationship. After a few months, by mutual consent they break it off, and the two of them work easily together from then on. Any problem?
[Again, not for now, but others may see favoritism, and, again, if Jill later suffers a negative job action, she can make a claim.]
Jack, a manager, asks Jill, one of his supervisors, out on a date and she says “yes.” They develop a relationship. After a few months, against Jack’s wishes, Jill breaks it off. She believes that after breaking the relationship off, she’s getting fewer of the important assignments that lead to promotion. Any problem?
[This could be retaliation. “Interesting assignments” may be tricky to define, but plaintiff’s lawyers are tricky.]
Jack, a manager, asks Jill, one of his supervisors, out on a date and she says “yes.” They develop a relationship. After a few months, Jill breaks it off. Two months later she doesn’t get the promotion she had anticipated, and a month after that she is fired for poor performance. Any problem?
[Yes. Now there are two tangible job actions taken against Jill. She files a lawsuit claiming quid pro quo harassment. She says she was forced into the relationship with Jack against her will, because she feared if she did not agree, she would lose her job and be unable to feed her three small children.]
Can this situation get worse?
Sure. Jack’s documentation of poor performance started the day after Jill broke up with him, and he’s never documented the poor performance of any other employee.
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What if we flip the positions of Jack and Jill in the scenarios above: Jill is the manager and Jack the subordinate. Does that make a difference?
[No. Nor is there a difference if it’s Jack and Jack or Jill and Jill, because it’s still able to be portrayed as “discrimination on the basis of sex.”]
General Tip for Harassment Training
Managers and supervisors shouldn’t waste time trying to figure out whether a given act is illegal harassment. It’s better to concentrate on whether or not the behavior is appropriate at work.
In tomorrow’s Advisor, more scenarios and an introduction to a new library of sexual harassment prevention training resources.