Dear Atty., Can I Bury My Head In Sand At Work?

The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”

A ostrich opens her mouthDear Atty.,

On a recent business trip to a conference, some of our staff members had too much to drink at dinner one night. One of our male sales reps made some unwanted advances on one of our female administrative assistants. The administrative assistant now says that she no longer is comfortable working with him and claims that she felt harassed. Because this was a one-time event outside of the office, I shouldn’t have to talk with my sales rep about this, right?

Signed,
Ostrich

Dear Ostrich,

I’m afraid you can’t simply put your head in the sand and avoid this situation. Let me explain why.

The Law: Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. An employer has the duty to prevent harassment from occurring and, if it does, remedy the harassment.

You are probably thinking that because the conduct occurred away from the workplace and outside of normal business hours your company has no obligation to address the situation. That really is not the case. Go back to the definition of sexual harassment above. You’ll notice that it covers conduct that has the “effect” of interfering with an individual’s “work performance or creating an intimidating, hostile, or offensive working environment.”

So, even though the conduct occurred outside of the workplace and outside of normal working hours, it still could have the effect of impacting the administrative assistant’s working environment. For example, she may no longer feel comfortable working with the sales rep on future products due to the alleged harassment. In addition, although the situation you presented occurred in the context of a company sponsored business trip, my opinion would be the same even if the same conduct occurred outside of working hours, away from the workplace at a non-company sponsored event. Because the conduct still could have the effect of impacting the administrative assistant’s workplace, we cannot ignore the situation.

With all of that said, it is unlikely that the sales rep’s conduct rises to the level of legally recognizable sexual harassment. In order for conduct to constitute actionable hostile work environment sexual harassment, it typically needs to be pervasive and ongoing; a single incident usually is not enough. As I mentioned above, an employer has the duty to both prevent and remedy harassment. Because the sales rep’s conduct likely does not rise to the level of sexual harassment, there may be no duty to remedy in this case.

Still, you have the duty to prevent this conduct from occurring in the future. This is why you cannot avoid meeting with your sales rep to discuss his conduct. In that meeting, you should make him aware that his conduct had the effect of making the administrative assistant extremely uncomfortable; you should remind him that such conduct may violate your company’s sexual harassment policy; you should provide him with a copy of your company’s sexual harassment policy (even though he likely already was given one as a part of your company’s handbook); and, finally, you should impress upon him that he is not to retaliate against the administrative assistant for bringing this matter to your attention.

I can appreciate that the meeting with your sales rep will be awkward and uncomfortable for you. If it’s any conciliation, it probably will be more so for him. Regardless, you need to go ahead with the meeting—you can’t hide your head in the sand.

Signed,
Atty.

If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.

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