6/20/2008

I've gotten hints and heard rumors through the grapevine about inappropriate activity going on in my company. In one case, a manager is allegedly "hitting on" a subordinate, and in another case, apparently employees are making fun of a co-worker on their project team because she is African-American. I don't have any evidence or corroboration, and no one has complained. Do I wait and observe, or should I act? How should I proceed? — Marnie G., HR Manager in Temecula

Marnie, you absolutely should act. This is no time to look the other way or take a wait-and-see approach. An employer has a duty to take reasonable steps to provide a workplace free from harassment. The information you have, even if it only came through the grapevine, has put you on notice of two situations that may involve harassment that is illegal and/or contrary to your antiharassment policy or your policies addressing relationships between managers and subordinate employees. You must address these situations, and you probably need to provide additional training for the workforce as a whole.

Potential Sexual Harassment

First I'll address the situation involving the manager hitting on the subordinate employee. Begin by interviewing the subordinate employee to establish what, from his or her point of view, is happening.

If the employee tells you that the manager has made sexual or romantic advances and that those advances are unwelcome or tied in any way to terms and conditions of employment, this is potentially sexual harassment. You must launch a full investigation and take appropriate disciplinary action, if necessary.

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If the employee confirms the conduct but says it was good-natured banter and not offensive to him or her, you still must address this as a situation potentially involving harassment or a violation of company policy. Other employees may be subject to the same conduct and may find it offensive. Even if no other people are involved, the conduct may violate your antiharassment policies and you will need to investigate thoroughly.

If the employee confirms the conduct but tells you that there is a consensual romantic relationship, the situation probably doesn't 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. As part of your investigation, interview other employees in the department to see if there has been any favoritism or perception of favoritism. It is appropriate to reassign one or both of the employees to sever the reporting relationship to avoid favoritism. You may also consider terminating one or both employees if the conduct violates a company policy regarding relationships between supervisors and their employees. 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.

If the employee denies the conduct, continue the investigation until you have run the issue to the ground. The employee 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.

Potential Racial Teasing

The path will be similar when you investigate the rumor that employees are making fun of a co-worker because of her race. Conduct a full investigation to determine the facts, and evaluate whether the conduct violates company antiharassment policies or is otherwise potentially offensive or illegal—if it involves racial jokes or epitaphs it almost certainly is. Teasing that has a racial component is very likely to create a hostile work environment and could easily provoke a race discrimination lawsuit.

Discipline the employees responsible for the offensive remarks. Also, take steps to prevent this type of conduct in the future and to prevent retaliation against employees who complain about it. This may be a good time to review your antibias and antiharassment policies with all your workers and to ensure that your complaint procedure is effectively communicated to the workforce.

The Bigger Question

Both of these situations should have been formally reported. It is troublesome that you only heard about them through the grapevine. This suggests that you need to do additional harassment training for all employees. California law requires most employers to provide harassment training to supervisors every two years, but it's a very good idea to provide the training to all employees. This training teaches employees what needs to be reported and how to report it. Equally important, it communicates to employees that management takes this issue seriously and is truly committed to providing a harassment-free workplace.

Thomas N. Makris, Esq., SPHR, is counsel at the Sacramento office of the law firm Pillsbury Winthrop Shaw Pittman, LLP.

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