Offenses, Harassment, and Dating in the Workplace

You’re leaving work late, round the corner to the elevator, and roll up on your boss and a colleague in a steamy embrace.

Awkward!

It looks consensual, and you’re not being sexually harassed, but it’s uncomfortable, not just in this moment, but as thoughts fill your mind on your detour to take the stairs.

Now what do you do? Anything?

Situations like this are easier to navigate when employers create a structure to prevent inappropriate behavior in the workplace and address incidents as they occur. The basic framework is simple:

1. Clearly document policies and procedures so that employees can understand the rules and consequences of the workplace.

2. Disseminate information (employee handbooks, guidebooks, policies, training) to create an informed workforce.

3. Lead by example.

What’s the Offense?

“There are a lot of things that happen in the workplace for which people could/should be disciplined, but not all are violations of the law (such as being consistently late or leaving early),” says Kathryn Simpson, shareholder/attorney at Mette, Evans &Woodside.

Similarly, someone may exhibit crass behavior, but it may not necessarily be sexual or directed at anyone in particular.

However, many behaviors can be offensive to some and can quickly affect morale, especially if it’s never addressed.

When it comes to harassment, we often think only about sexual harassment, although there are other types of harassment that are just as serious, uncomfortable, and unlawful. (The Pennsylvania Human Relations Act outlines protected classes, which is critical for employers to understand when it comes to harassment claims.)

The common thread in any type of harassment is that there is always a target and a person accused of some alleged offensive behavior.

It is the employer’s responsibility to have clear policies, procedures, and training so employees know and understand what the rules are, what the law is, and what happens when a violation occurs — including consequences for offenders, what to report, and how.

“You have to have some sort of framework,” Simpson advises. “The policy should say, ‘If this happens, here’s where you report it.’”

Knowing What to Do

Clear policies and procedures must be disseminated via some type of employee handbook/guidelines, repository, and/or training to be sure people know the rules and what to do.

“I would say that there are two types of training,” says Simpson. “We could call the first type a ‘sociological’ training — helping employees understand how they need to get along and get the job done — and the second type is specific to the law.” Both of these types of training are critical.

This first type of training establishes “how to play nice in the sandbox” — where employees are advised that it is necessary to have mutual respect in the workplace and that bullying and other divisive behavior will not be tolerated. 

The second type of training is more nuts and bolts — here’s the law, here’s what’s going to happen when claims of harassment based on sex, race, religion, or any other protected classes set forth in the law occurs, and here’s what happens to those who don’t follow the law.

Using policies, procedures, and training to educate the workforce provides the information needed by the employees. It’s a good practice to have the employees sign off on an acknowledgement that they have been provided with copies of the policies and have received training.

What’s Going to Happen?

Policies and guidelines typically spell out consequences for violations. Once there’s a report of harassment, it’s important for the employer to have a plan for an investigation of the claim. Policies and procedures that allow investigation are critical, as is the need to address anti-retaliation, as well.

Many anti-harassment policies promise confidentiality to those who report claims. In the real world, that promise can be difficult to keep. At the least, an investigator needs to talk to the alleged offender and any witnesses identified by the person complaining and the alleged offender, so it is virtually impossible to keep an investigation totally confidential. 

Aside from confidentiality concerns, many of those who report harassment fear retaliation. This fear may keep them from reporting incidents in the first place. These fears can be very valid, especially since those who retaliate are often others not involved but who may “take sides.” A strict anti-retaliation policy that is applicable to all employees is necessary. 

The purpose of the investigation is to determine credibility: did this incident actually happen; is it harassment or otherwise in violation of the policy; and, finally, what needs to happen? 

Sometimes during the investigative process, it’s worth asking the target what they think should happen. If the investigation shows there was harassment, what do they believe is the appropriate sanction? Other times, the law clearly drives the consequence.

Other Prevention for Harassment

Dating policy optional – There are times when a dating policy is very important. It can depend on the business size, how competitive the market is for qualified candidates, and whether it makes sense for the business. 

However, limiting workplace dating, at least between supervisory personnel and subordinates, or people involved in rating/reviewing performance can go a long way in avoiding problems before they occur. It can eliminate questions of fairness/preferential treatment, as well as protecting the work environment from situations where consensual relationships go bad, which can affect their productivity on the job.

Lead by example – Simpson advises that, beyond necessary workplace policies, procedures, and training, leading by example plays a major role in minimizing workplace harassment.

“If managers are not leading by example, it stratifies the workforce — it says to employees, ‘Here are people who can and people who cannot get away with …’”

Harassment in the workplace is complex, and a structured framework geared to prevention is beneficial to both employers and employees to navigate this territory. Making sure that employees understand the rules and consequences is critical. 

But perhaps the most important ingredient in preventing harassment is to ensure the same rules apply to everyone, from the bottom to the top. 

Policy maintenance – Simpson says, “Have a harassment policy, review it frequently to see if it’s working and in compliance with the law, and provide regular training on harassment for your workforce.”