More Than a Pinch: When Fun and Jokes Cross the Line at Work
I’ve lived in Chicago, Boston, and New York. All three cities take St. Patrick’s Day VERY seriously. Chicago dyes the river green. Boston residents flood the streets of Southie. New York shuts down Fifth Avenue for the parade. While people are celebrating in the streets, others have to work. And St. Patrick’s day can be a day rife with innuendoes that may lead to trouble in the workplace. Someone may wear a “Kiss Me I’m Irish” pin and ask people to kiss them. Wearing or displaying these pins in a workplace creates a sexually suggestive environment, even if the intent is purely in jest. Employees should never feel pressured to solicit or accept physical contact as part of a tradition. Others may walk around pinching their co-workers who don’t wear green. Uninvited physical contact, even pinching, can be considered workplace harassment, create hostile work environments and harm employees.
Companies have a duty to create a workplace free from harassment. According to the Equal Employee Opportunity Commission (EEOC) According to the EEOC, harassment is unwelcome conduct based on a protected characteristic,like age, race, sex, or national origin. It becomes unlawful when tolerating it becomes a condition of keeping your job, or when it's severe or pervasive enough that a reasonable person would find the workplace intimidating, hostile, or abusive. That means offensive jokes, physical contact, mockery, insults, and even offensive objects or pictures can all cross the line. https://www.eeoc.gov/harassment. "It's a tradition" or “C’mon, it was just a joke” is not a defense. The impact on the recipient matters more than the intent of the person doing it.
I’ve heard many complaints about harassment during my career. People may say that some complaints were “ridiculous” or “she’s just being sensitive”. All claims should be taken seriously and investigated promptly. It’s not up to the person hearing the complaint to decide if it’s valid or not.
To conduct a good investigation:
Act promptly — delays send a message to the claimant that the company isn't taking the complaint seriously, and can increase legal liability
Maintain impartiality — if HR is too close to the situation, bring in a third party investigator. People close to the situation should not conduct the investigation.
Maintain confidentiality — but don't promise total secrecy — information will need to be shared with witnesses, so never promise complete confidentiality. Remind all parties not to discuss the matter with coworkers during the investigation
Interview the claimant, witnesses, and the accused.
Document everything — notes, interviews, texts, emails, and any physical evidence. Keep it all in a secure, confidential file separate from personnel records
Reach a conclusion — the standard is preponderance of the evidence, meaning it is more likely than not that the conduct occurred.
Take prompt remedial action — if the complaint is substantiated, discipline must follow. Doing nothing after a finding exposes the company to liability.
Communicate with the claimant — let them know the investigation has concluded and action has been taken. You don't need to share the details of any discipline. Follow up with them after the investigation to check in with them to see how things are going.
When a claimant comes forward and an investigation commences, people may become quiet and they don’t want to “get involved”. Providing a safe space for witnesses to talk is crucial. Having a strong policy against retaliation and ensuring that no retaliation is taken against any claimant, witness, or others who are taking part in an investigation is crucial, too.. People have a right to a safe work environment free from harassment, discrimination, and retaliation.
According to an EEOC complaint against Elite Wireless, a teenage female store employee of Elite Wireless faced sexual harassment, including repeated unwelcome advances and requests for sex, from a sales manager in 2017. The sales manager later sexually assaulted the employee at a holiday party and Elite Wireless failed to act on reports of the harassment and permitted the sales manager to continue working with the employee, even after she filed a criminal complaint against him.This case demonstrates how holiday celebrations can turn ugly quickly: https://www.eeoc.gov/newsroom/phone-retailer-pay-107916-eeoc-sexual-harassment-lawsuit
Disregarding an employee’s claims not only harms the employee, it harms the company and opens it up to serious risk and liability.
Having fun at work is a key element to a good workplace. Celebrating with co-workers can create strong teams. However, if companies don't protect their employees, it can turn ugly. Fast. Have a strong policy against harassment and discrimination. Investigate claims promptly and thoroughly, maintain confidentiality, and take necessary action to keep employees safe in a harassment free workplace.
The streets of Chicago, Boston, and New York will be full of green on March 17th. What happens out there stays out there. Make sure your workplace stays a place where everyone feels safe, respected, and protected.
