Many of our employees believe that their married co-worker—I’ll call him “Bob”—is having a romantic relationship with a woman who cleans our offices. This woman works for a cleaning company we’ve hired to come in three times a week. I’ve received complaints about their public displays of affection (although I’m not sure about the details) and the fact that he takes out the trash for her, which allegedly interferes with his own job. People (particularly Bob’s manager) are upset from a moral standpoint, but Bob isn’t really breaking any rules, I don’t think—he has nothing to do with the cleaning company we hired. What should I do?
— Anonymous
Let’s start with what seems like the obvious answer. The simplest solution may be to ask the cleaning company to assign the woman to a different site. That would eliminate the issue without requiring you to discipline Bob or to manage this as an ongoing problem. But read on before taking this approach.
Investigate the Situation
Because life is seldom that simple, let’s back up and look at a few issues that may affect how you ultimately resolve this situation. To begin with, it’s unclear how much of the information you provide in your question is what you know to be true and how much has come to you or to Bob’s manager through the grapevine.
First, you need to verify the nature of the public displays of affection and evaluate whether they are inappropriate or offensive. If you have personally stumbled on these two “making out” in the hall (which doesn’t seem to be the case), this may not be an issue. However, if you have only heard rumors, you need to conduct a proper investigation.
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Interview the employees who complained about the conduct and any witnesses you identify so you have firsthand statements describing the conduct other employees have observed, the surrounding circumstances, and why they think the conduct is inappropriate. If the conduct is similar to the interactions that occur in the workplace between other couples, you may conclude that the conduct, if consensual, is not something you need to address.
Second, confirm whether the conduct and the relationship are consensual. Based on the information you have, the interaction appears to have both individuals’ consent, but this is a critical point to investigate. You know that Bob is not involved in the business relationship with the cleaning company, but the woman may not know this. She might see Bob as a person with power to affect her job and could feel coerced.
Once you have interviewed employees and have a clear, firsthand account of the observed conduct, you should separately interview Bob and the cleaning woman. If they admit to the observed conduct, you won’t have to worry about resolving questions of credibility. If they convincingly agree that their relationship, whatever it may be, is consensual, that would largely eliminate sexual harassment concerns. However, if they deny the accuracy of the witness observations, or if you are not convinced that the relationship is consensual, you must treat this just as you would any other sexual harassment investigation.
You will have to decide at what point you wish to bring the woman’s employer into this process, if at all. You may notify the cleaning company of the issue before you talk to her, particularly if your interview with Bob creates any suspicion that the relationship may not be 100 percent consensual. On the other hand, these situations are sensitive and can be very embarrassing for the parties involved. Your conversation with Bob may convince you to talk to the woman without notifying her employer, and you may ultimately decide to try to resolve the situation without telling her employer any of the information you get from the interviews. (You can ask the woman to talk to you, but you cannot require her cooperation. If she will not talk to you voluntarily, you may need to involve her employer to gain her cooperation.)
Third, clarify how this relationship affects Bob’s work performance. It is not self-evident how Bob’s taking out the trash interferes with his work. Does he do it during work hours? How much time does it take? Is he not completing his assigned tasks? If his work is truly suffering because of this relationship, you, with his manager’s help, must detail the deficiencies in his work and why you think they are tied to his relationship with the woman from the cleaning company.
Possible Resolutions
Your course of action will depend on the results of this investigation. At one extreme, you may conclude that the workplace conduct is not inappropriate, the relationship is consensual, and the relationship isn’t affecting Bob’s job performance. In that case, no discipline or other formal action would be required. You might decide to do nothing other than to tell the other employees (and Bob’s manager) to mind their own business. You might counsel Bob that it would be better to be more discreet and see if the issue resolves itself. Or, you could be more proactive and ask that the cleaning woman be assigned elsewhere. Any of these approaches would be appropriate.
If the relationship is consensual but the displays of affection are inappropriate for the workplace, or if Bob’s performance is suffering, you could discipline Bob based on the deficiencies in his work or for unprofessional workplace conduct. You do not need to have a nonfraternization policy for conduct- or job-related discipline to be appropriate.
At the opposite extreme, if the relationship is not consensual, you must discipline Bob just as you would if the victim of the harassment was one of your own employees. In theory, the discipline could be as severe as termination. Also, you must take steps to ensure that the harassment ceases, which can include prohibiting Bob from interacting with the woman and requiring him to get harassment counseling. At this point, you should also work with the cleaning company to resolve this situation. A good option here would be to ask the company to give the woman the option of reassignment. (However, if the relationship was not consensual, you should not ask that she be reassigned against her wishes.) The cleaning woman’s employer should inform her in writing of her right to be free from harassment, of the reporting avenues available to her, and that there will be no retaliation if she reports or complains about future misconduct.
Thomas N. Makris, Esq., SPHR, is counsel at the Sacramento office of the law firm Pillsbury Winthrop Shaw Pittman, LLP.