Legal Question in Sexual Harassment in California
Is this workplace harassment?
I manage a small public agency (8 employees) and was hired one month ago. My Board has just informed me that the a female Admin. Asst. had written a formal complaint to them about creating a hostile work environment. I touched her on the shoulder one time with one hand in response to her complaint about shoulder stress. She viewed over my shoulder another time an inappropriate ''Benny Hill bare ass photo'' which we laughed at and I deleted saying that it was inappropriate. At lunch one day off-site (just the two of us) I used a profane word. I have observed she has used them at work occasionally. She has not made mention to me that this was offensive and inappropriate behavior and has not complained to any other staff member. I have had two occasions in the past month in which this individual has not done work that I have instructed her to do and has objected to my work suggestion. The office environment is casual and open with no cubicles or offices. I work with her full time with some part-time female temporary file clerks coming in two days a week. The remaining staff members are male and work off-site. Do I have reason to believe that I am being ''set-up'' and this person has baggage that I should be careful around.
3 Answers from Attorneys
Re: Is this workplace harassment?
That you need to be careful is a given, regardless of her motives. Sometimes, what is offensive or unwelcome is a matter of perception. In this day and age, you need to be sensitive to what you say and how you act in the workplace, even if you do not believe your actions have reasonably offended anyone.
Some employees may use, what they see as, arguably offensive behavior as a weapon to protect themselves against threats to their jobs. Once a complaint is made, employers may not retaliate against the employee, thus making it very difficult to discipline them, even if there are legitimate grounds to do so.
There is no way to tell from your question whether you are being set-up or not, but one thing is clear. You must use good judgment with what you say and do in the workplace and seek advise from your superior if you plan to reprimand or take any kind of adverse action against this employee. You may even need to bring in legal counsel to explore your options.
Re: Is this workplace harassment?
If a woman says it is harassment, then it is treated presumptively as harassment by the company. You should get competent legal advice about your rights and risks, and whether you can somehow rebut any claims she makes officially. Such claims could get you fired. Contact me if interested in doing so.
Re: Is this workplace harassment?
1. Mr. Michael Kirschbaum's response is to be re-read and understood by you.
2. Are you being "set up?" Perhaps. The real issue is for you to be acutely aware that any co-worker may have "tender sensibilities" such that NOW THAT YOU ARE ON NOTICE you have to remain extravigilant and careful.
3. Advise you to have as little communication with the complaining co-worker as you can. If you have to provide directions or instructions, CONFER with your supervisor on how to handle this. Do not act without benefit of another person's in charge of you advising you.
4. There is probably not a written protocol since you are with a small employer. Discuss with the "boss" about how you and the boss can protect the company in the future--this may get you some brownie points.
5. DO NOT send any emails or other writings to the co-worker even to apologise. Take that up with the boss.
Good luck
Mark Mitchell Geyer
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