Workplace Harassment and Discrimination Q & A

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1. Explain the situation.

As Sam’s supervisor, I would interpret declared facts underlying “the situation” from the standpoint of both historical context and physical location. As a matter of historical context, Sam’s co-workers view him as being a friendly and competent technology resource; many feel at ease bartering Sam’s time resolving their personal computing needs while at the office for coffee, lunch, and gift cards. Assuming this “off the books” bartering behavior occurs openly, it is not surprising that his co-worker, Trisha, would seek to extend the physical location of his help to her off-site apartment on Saturday. Sam’s discomfort with and rejection of Trisha’s sexual advances the first time he went to her apartment seems to have resulted in rumors of his homosexuality back at work. Sam’s actual sexual orientation is not clear. What is clear is that Sam felt troubled both by the cartoon left pointedly on his desk as well as the office chatter, which suggests that at least some of his fellow employees seek to publicly label him as “gay.”

2. Is this a case of harassment/discrimination? Explain your answer.

If shown to be true and left unaddressed, the facts indicate that harassment exists from two standpoints: (1) Sam could claim this situation is gender stereotyping harassment and/or represents workplace violence, and (2) Sam’s co-workers could claim this situation creates a hostile work environment. Unwelcome sexual advances by Trisha, overtly intimidating documents (an altered cartoon, in this case), and verbal threats (throwing a “gay” accusation at Sam in his absence) are illegal. In addition to Sam, other employees may also feel gender stereotyping comments and sexually charged advances create a hostile work environment, such that they have to endure the hostility Sam suffered in order to remain employed.

Based on all the reported circumstances, it seems reasonable to claim that the company implicitly approves of and even fosters personal bartering relationships between Sam and fellow employees, regardless of where and when they occur. The court case, Henderson v. Labor Finders of Virginia, Inc., (2013), highlights the legal risks companies take when not promptly addressing an employee’s report of this nature. There, the court allowed the case to proceed when the plaintiff employee was constantly subjected to verbal homophobic epithets by other employees or supervisors. The pro se plaintiff wrote several complaints to management but received no response. The company here should not make the same mistake with Sam.

3. What, if anything, should be done?

As a supervisor, my duty is to protect the company’s best interests, not the personal interests of employees who might be aware of the situation. It would not be acceptable for me or any other level of management to respond to Sam’s concerns casually. Suggesting that he just “work it out on his own,” especially since “the situation” started at his “co-worker’s apartment on Saturday” would embolden those who spread rumors detrimental to Sam’s desire and/or ability to work at his best level. His fellow employees might also suffer for the same reasons.

A company’s most valuable asset is usually its employees. When employee morale falls due to sexual harassment, not only does work output suffer, new resources must be devoted to combating the negative forces that caused the illegal activity in the first place. Management needs to clearly broadcast that everyone at the company is a stakeholder in the discussion and that everyone, from the CEO to the mailroom clerk, is held accountable to the same policies and procedures, which makes sexual harassment a serious policy (and possibly criminal) violation.

4. Should the situation be reported? If so, to whom and when?

Sam acted correctly in reporting the situation immediately to me, his supervisor. In that capacity, I would first request that Sam continue to report to me directly any new developments he personally witnesses, ask him to trust in my commitment to immediately trigger an investigation and then recommend appropriate action based on facts discovered. I would also tell Sam that if he wanted, the company would provide him counseling. Finally, I would emphasize that our conversations are both confidential and designed to further proper investigation and resolution.

After making a brief assessment of the office environment, I would deliver my written report to the Director of Human Resources within 24 hours of my first meeting with Sam. My written report’s focus would be fact-based and provide a general overview of negative effects that might result if left unattended. The suggested action plan would highlight the importance of following the protocol outlined by the company’s policies and procedures manual addressing issues of illegal harassment and hostile work environment. If no policy and procedure manual exists, then I would suggest that the company consider consulting with an employment attorney to help resolve the situation promptly and legally.

Reference

Henderson v. LABOR FINDERS OF VIRGINIA, INC., Civil Action No. 3: 12cv600 (E.D. Va. Apr. 1, 2013).