Sexual Harassment

MEssig · July 2003

My question to all of you HR professionals is this: Would you fire a low-performing store manager for the following reason:

After repeatedly denying that he was in a relationship with a subordinate, it was reported that the subordinate was complaining that the manager had lured her into a windowless office and "made a pass at her." When I questioned the staff member, she confirmed that he did in fact lure her into the office and proceeded to grab her behind. At that point she told him she was disappointed in his behavior and that she was not interested in having a romantic relationship with him.

This manager has received a previous "light memo" for inappropriate agressive behavior, i.e., he gets angry and postures in a confrontational manner.

I believe he is a time bomb and that 10 months into the job, we must admit we made a mistake promoting him. Furthermore, to complicate matters, the employee is now complaining that he is retaliating by giving her poor schedules. Unfortunately, the schedules validate her claim.

How can I convince my boss, that this type of behavior is unacceptable in any form, and that there is no excuse for this apparent lack of judgment?

Please advise.

Devika · July 2003

You asked how you can convince your boss, but it seems almost unbelievable that any convincing is necessary. Please clarify: Are you wondering how to break the news to the boss, or does the boss already know the facts and refuse to do what is obvious, logical, and necessary?

MEssig · July 2003

My boss prefers that we present the information and then inform the manager that he is on his last leg, hoping that the manager will see the writing on the wall and resign. I think it is far too risky for a multitude of reasons, most seriously, that when it happens again, we have an all too clear trail that we did not take the behavior seriously, and in fact, condoned the behavior by issuing a warning rather than a discharge. Oh - one more thing. My boss is concerned that the manager may have details that this was at one point a consensual relationship, but again, I think it is irrelevant to the incident at hand.

And, last but not least - the last time the manager claimed that I did not like him, that was why he was "suddenly" being written up. Not the best response under the circumstances. Up to this point he does not deny his behavior (we have not confronted him with the latest incident yet) but blames it on a series of situations, events, or people. In my experience, this type of response is hopeless and no amount of counseling, training, or punishment will change his behavior because he sees nothing wrong with it.

It is only fair to say that my patience is running out with this guy, and I am very concerned that he is going to get us sued, so I could be losing objectivity. I suggested we have our labor attorney render an opinion, but my boss declined that option. I welcome your input. Please advise.

Thanks.

scottorr · July 2003

I would let your boss know that regardless of a past relationship, it is over now and this ee is feeling harassed. Just because you had a relationship with someone, does not give them the right to harass you. He is in a superior position to her and from your post he is making things difficult for her. If I were an employment attorney I would be all over this! Let this guy know that an investigation is under way and that you think this is a serious matter....and remember to document document document!

FrayWitzer · July 2003

How about you suggest hiring an independent attorney to conduct an investigation? Any good investigator would come to the same conclusion and make the same recommendations. For some reason, it is sometimes easier for people to hear this news from someone on the outside. In addition, state and federal law would likely either mandate such an investigation or, at a minimum, make one very very useful to demonstrate that the company was taking the allegations seriously. You are correct that this situation is a time bomb and, more to the point, it is an enormous lawsuit waiting to happen as well.

Good luck

gillian2 · July 2003

Can any of the other behavior that this person has exhibited fit sexual harassment- and it doesn't have to be overtly sexual - does the posturing happen to primarily females? Yes, I think that you should cut your losses, as well. If the boss is the problem in that he doesn't understand, gather up a few newspaper articles about sexual harassment in California and demonstrate what happens to companies that ignore the problem. Check out Labor Code 12940 - we are supposed to be proactive and prevent sexual harassment - not just react to complaints.

Tony Kessler · July 2003

MEsig,
Gillian makes some good suggestions, including finding a few newspaper articles to prove your points. Along that line, here's something that might help: If you're an Employment Law Letter subscriber, you're about 30 seconds away from reading a ton of articles about sexual harassment cases, including many that Calfiornia attorney Joe Beachboard has published in California Employment Law Letter. Simply go to the home page for this website, log in (in the upper-right corner), and search the newsletter archives for "sexual harassment." If you confine yourself to California articles, you'll see an article near the top titled, "Settlement comes with $10 million price tag," which, granted, was almost a worst-case harassment scenario involving about 100 employee/victims. Further down the list was a case more closely resembling the type of behavior that you've described. The headline: "Judge reduces $30 million verdict in harassment suit." (FYI, it was reduced to a "mere" $8.25 million.) If you expand your search to the Employment Law Letters for all 50 states and the District of Columbia, you'll have a gazillion more choices. Let me know if you have any trouble signing on, and good luck with fixing your problem. tk

Tony Kessler, director of editorial
M. Lee Smith Publishers LLC
(615) 661-0249 ext. 8068

blw · July 2003

Also, point out to your boss that retaliation is involved. The fact that the schedule verifies her claim can be very fortunate if you act on it (and yes, unfortunate if you don't). Terminate on the basis of inappropriate behavior and retaliation. When you look up some of the articles mentioned above, look for ones involving retaliation as well - sometimes the $ involved is far more for the retaliation charges.

Needtoknow · July 2003

Definitely have a qualified external investigator conduct this investigation. Sounds like a very clear case of harassment with recrimination; however, the courts will look to see if you objectively obtained information and acted upon that information in a non-biased manner.

Of course, if the investigator determines that this is a serious and a repeated pattern of behavior, the recommendation should be to terminate the offending employee immediately upon conclusion of the investigation without any severance pay.

We have had this happen on three occasions. One of the three received a written warning for his personnel file since it was not a "clean" case of harassment but rather an annoying of an employee. The other two were immediately terminated without severance.

We have a zero tolerance policy which not only is directed to sexual harassment but also to providing a respectful workplace which prohibits any type of harassment or unfair treatment of another employee. By acting quickly on a complaint, we have sent the message that this is something that we just won't mess around with.

ray a · July 2003

Immediately confront this manager with the accusation. Have a witness with you, preferably his boss. If he admits to the doing what he was accused of, immediately terminate. If he denies it ever happened, tell him you will be getting back to him. Perform an investigation, build a case, then terminate.

The longer you wait, the less serious the situation will appear.

Devika · July 2003

First, I think the other advice presented here is right on, particularly regarding investigation. There is always the remote possibility that the charge was invented. Beyond that, I would stress to your boss the immediacy and the absolute creepiness of the behavior. The possibility of a future lawsuit is one thing, and a real risk. What you describe, however, borders on sexual assault, so treat the mnatter as a possible crime rather than a possible future problem. He lured her into a secluded area where he could block escape? While there, he touched her in a sexual manner against her will? The bad thing is not coming, it already happened! Creepy, creepy, creepy. I have no idea if it was actually a crime, but presenting that idea to your boss might help. And use all the suggested court cases, too.

Margaret Morford · July 2003

One tactical suggestion, either have your attorney do the investigation or hire the person to do it. That way you may be able to shield the report behind attorney/client priviledge or attorney work product.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

FrayWitzer · July 2003

A tactical suggestion to the tactical suggestion: if you have your regular attorney conduct the investigation, you run the risk that the attorney will become a material fact witness and, therefore, he or she may be disqualified from representing you in any subsequent litigation. Having your regular attorney hire an independent investigator is a good idea, but you should be aware that, if you want to rely upon the investigation (and subsequent actions taken in response to the investigation), it is likely that the investigation will NOT be protected by attorney-client privilege. Still, these types of investigations are VERY useful and, IMHO, worth the risk that the investigation may be discoverable.

Evan

gillian2 · July 2003

Since this is in California, the only persons who can investigate this is an attorney, a private investigator or a designated employee. Three or four years ago there was a case where the investigation was done by a third party HR consultant (no, not me). The plaintiffs attorney noted that the only legal investigations in our state are those done by attorneys or private investigators. The local SHRM chapter was instrumental in getting legislation passed which would allow HR specialists to conduct these kind of investigations. The governor vetoes the proposed law.

Sexual Harassment

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