Assessing If Workplace Conduct Qualifies as Harassment

By Barrie Gross

Two of my employees were romantically involved, and now one of them claims he is being sexually harassed by his ex. Does the company have a responsibility to intervene?

That depends. It is possible

that the alleged victim is simply being oversensitive and may be having a harder time with the break up. In that situation, it may be necessary to do no more than meet with the employees (separately) and clarify your expectations about behavior in the workplace. But it also is possible that the same conduct before the relationship ended could be interpreted as inappropriate after the break up.

For conduct to be considered illegal harassment, one of the requirements is that it be "unwelcome" conduct. And whether it is "unwelcome" is determined in the eyes of the beholder. For example, during the relationship, it may not have been an issue of concern for the alleged victim that his romantic partner was always stopping by his desk and making comments about his manner or style of dress. Or he may have liked the fact that his partner called him six or seven times during the day to ask how he was doing. But after the relationship ended, that same conduct may not be received in the same way. It could be bothersome, offensive. or otherwise make him feel uncomfortable.

It does not matter whether the ex-partner has no ulterior motive and is not trying to offend. In fact, the intent of the ex-partner is virtually irrelevant. And even if the conduct is not illegal now, it may become illegal if it continues over time because it could create a harassing environment. Meanwhile, the conduct may be inappropriate in the workplace regardless of whether it is illegal.

It is a good idea to work with human resources and/or legal counsel to conduct an investigation commensurate with the circumstances. The conclusion may be that nothing inappropriate happened and that the issue is strictly personal. But even so, the employer would probably want to let the employees know that they are both expected to behave professionally at work. The investigation could just as easily show that without the personal relationship, conduct that was welcome before is not welcome now and needs to stop. And in that case, an employer would be obligated to put a stop to it and take action to prevent it in the future.

Needless to say, an important element of this situation is documentation. The complaint should be documented by the manager at the time the complaint was made. The investigator should document the investigation as well. And any conversations with the employees at the end of the investigation should be documented and kept for future reference. In the event the behavior continues and the situation becomes adversarial, the employer's record of looking into the issue and trying to address it effectively will be helpful later.

The bottom line is that employer needs to take the issue seriously. If the employer dismisses the issue as a personal one, it could mushroom into much more. The difficulty for the employer is in deciding where a personal issue between two people becomes a workplace issue that needs to be addressed. Only an investigation, even a minimal one, can help determine the scale of the employer's response. Your human resources and legal departments are well trained to help you assess the issues and create an appropriate response.

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Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.