Whether sexual harassment occurs during activities related to the workplace is key to determining an employer’s responsibility. Situations in which “workplace relatedness” applies include when employees travel for business, or when a group of employees—especially managers and their direct reports—attend a work function or event after work hours.
If a job connection exists, HR should investigate allegations of off-duty sexual harassment. Some courts have held that employers may face potential liability if they are aware of an employee’s alleged harassment and fail to take appropriate action to stop it, even if the alleged harassment occurred outside of the workplace. Off-duty sexual harassment can certainly spill into the workplace, and an employer has an obligation to address it to ensure the safety of employees.
Sexual harassment can take many forms, both inside and outside of the workplace and work hours, including:
- Sending romantic or sexual messages via email or social media.
- Sending pornography without consent, or requesting sexually explicit pictures.
- Using power or position in exchange for sexual favors.
- Unwelcome touching.
- Stalking, following or badgering.
- Making sexually explicit comments or jokes, or telling sexually explicit stories.
- Asking about a co-worker’s personal life, sexual history or fantasies.
Employers that receive a report of sexual harassment must conduct an unbiased, thorough investigation to determine its validity. And since off-duty, off-hours conduct may put an employer in legal or financial jeopardy, the employer has a legitimate reason to investigate the situation and take appropriate action.
Just as it would if the behavior had occurred in the workplace, during the investigation process into alleged off-duty sexual harassment, HR should interview involved parties and any co-workers who may have witnessed the behavior. Based on the facts and evidence collected during the investigation and the credibility of the parties involved, HR may take disciplinary action, up to and including termination, as warranted.
Employers should clearly state that their anti-sexual harassment policies apply to off-duty behavior as well as on-duty. Anti-harassment, code of conduct and disciplinary action policies should all mention the consequences of off-duty conduct that may result in the harm of an employer’s brand, reputation or business.
HR should address employee off-duty behavior in multiple policies rather than having a separate policy for it. Taking precautionary measures can help employers prevent employee harassment and reduce their company’s potential liability.
Patricia Graves, SHRM-SCP, is an HR Knowledge Advisor for SHRM.
