by Rob Parker
It is difficult enough to deal with employees who have an intimate or romantic relationship and the potential for sexual harassment claims. But what if the sex is consensual, and occurs in the workplace?
An executive had been hearing rumors that one of his managers, who was married, was having an affair with one of her subordinates. The executive did not want to get involved in the manger’s personal life, but the rumors persisted. Other employees were beginning to feel uncomfortable working with her and wondered why the company was not intervening.
One evening on his drive home, the executive decided to pay an after-hours visit. He noticed two vehicles in the parking lot and the lights turned off in the building. He knew that one of the vehicles belonged to the manager, but wasn’t sure about the other vehicle. He parked his car and entered the building’s back door. He didn’t hear any voices and decided not to call out. He entered the unlocked door to the managers’ office only to witness the manager and her male subordinate engaged in a sex act. Obviously startled, the male employee rushed by the executive and into the restroom. The manager ran through another door in the opposite direction.
The executive caught up with the manager and told her that they had to meet first thing in the morning. The executive also asked the male subordinate to meet with him as well and to take a paid day off in the interim.
During the meeting with the manager, the manager claimed that the sex was completely consensual and that the employee would confirm it. The executive consulted with NAE and concluded that he had no viable option but to terminate the manager. The male employee subsequently met with the executive and was offered counseling. He declined the offer and resigned shortly thereafter.
What the employer did right:
- Took the time to investigate the rumors by stopping by the office.
- Met with the manager immediately the next day to discuss the incident.
- Took prompt remedial action by terminating the manager’s employment.
- Offered counseling to the employee and gave him paid time off.
What the employer could have done differently:
- Should have acted more quickly to investigate the rumors.
- Proactively provided harassment training for employees.
Consensual sex in the workplace or while on company business is a very serious matter. Even off-duty consensual sexual relationships can become non-consensual and eventually lead to claims of harassment. Sexual and romantic relationships between a manager and an employee are particularly problematic as quid-pro-quo sexual harassment.
The Equal Employment Opportunity Commission (EEOC) expects employers to immediately investigate possible harassment once they have the constructive knowledge and take prompt remedial action. Employers must investigate even if the alleged victim does not want any action taken.
NAE receives frequent requests for workplace harassment training. It is a good idea to have regular training on what constitutes unlawful harassment. If you are interested in this training, please don’t hesitate to contact us.
