It's Not Always What it Seems...Rod Stephens
April 18, 2008 — 1,850 views
Consider the following:
1. You receive an email accusing a male employee of a sexual relationship with a female co-worker.
2. Next you receive a package, bearing the return address of the female co-worker, that contains what are purported to be nude photographs of the male employee with his face obscured.
3. You learn that a website that promotes casual sex has an account for the male employee and contains what appear to be graphic sexual exchanges between the male employee and the female coworker. In addition, you also learn there a nude images of the male employee on that website.
Is this a case of sexual harassment? Is this the case of an employee that is conducting themselves in a fashion that could be detrimental to the image you expect your employees to maintain? Could it be something else?
This is part of what is alleged to have occurred in a case brought against a 50 year old female Oregon tax attorney engaged in identity theft and cyberstalking. The Prosecutor's Office alleges she sent sexually explicit photographs to her ex-boyfriend's employer and tried to frame him for sexual misconduct.
I know you are in this field because you enjoy your work, however, you did not want to be part of the cast of CSI Miami. If you did, you would have auditioned for a part. Never the less, this has been brought to your attention and now you have to do something. The signs all point, at a minimum, to the possibility of a sexual relationship existing between employees and poor judgment on the part of one or both employees. They also could be a sign of sexual harassment. Ignoring the problem could result in a sexual harassment lawsuit, the loss of a valuable employee, and damage your company's image.
As the employer, you now have the duty to investigate. That does not mean jumping to conclusions but learning the facts from all the parties. As with any task, it requires advance planning. Here are 8 things you should consider before commencing an investigation:
1. Does the one of the parties require protection?
2. Will it be necessary to separate the parties during the course of the investigation?
3. Will confidentiality be an issue?
4. What are the company policies that apply? (If this is a sexual harassment case, then the company's equal employment policy, sexual harassment policy, and anti-retaliation policy all come into play.)
5. What past precedent has been set by your company in similar matters?
6. How long will the investigation take?
7. Should a third party, such as an experienced employment law attorney or a human resources consultant, conduct the investigation?
8. What is the least intrusive way to conduct interviews?
Once these questions have been answered, you will be ready for the first step; interviewing the reporting party. More on that in a future post.
Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature. Nothing can substitute for a consultation with a legal professional who can address your particular legal problem.
Rod brings a unique perspective to the table in that he represents management and employees. We feel this allows us to offer a broader perspective to our clients in that we understand cutting edge employment law issues and how they are perceived by management and employees. Employment law matters can require immediate response in times of crisis. On those occasions, you can take comfort in the knowledge that we are prepared to provide the type of response that takes advantage of years of experience.