Out of Office: Liability for Sexual Harassment Outside of Work

When you clock out of work, are you still considered an employee? Are you liable for your actions and how they may reflect on your company or the future consequences?

Companies can still be liable for harassment outside of working hours.

The definition of sexual harassment has come a long way to show that it is a much broader and more complex subject than just existing within black and white.

So what happens when the lines of what is considered to be the office become blurred?

This is one of the spaces we have to recolor the grey.

Currently, there are two types of sexual harassment in the workplace that exist: quid pro quo and hostile work environment. When identifying the type of scenarios that are sexual harassment, most of us would locate quid pro quo.

Mostly portrayed in media, it is, for example, when a supervisor asks for sexual favors for a promotion. However, one lesser-depicted example is a hostile work environment, which is any form of repetitive behavior that creates an intimidating working environment for the victim. Hostile work environment sexual harassment encompasses all situations that cause someone to feel emotionally distressed at work. It also includes various employment discrimination cases based on sexual orientation and/or gender. Understanding these types of harassment can know how they can influence the responsibility of responding to complaints when they occur outside of the workplace.

According to the United States Society for Human Resource Management sample Sexual Harassment Out Of Work Policy and Complaint/Investigation Procedure, employers are recommended to include a policy that states “employees are prohibited from harassing others both on and off the employer premises and during or outside of work hours.” A supervisor who made inappropriate physical contact with an employee at the Friday night happy hour event is the same person the employee will need to interact with while back on the job.

Title:

A civil lawsuit in the US, McGuinn-Rowe vs Foster’s Daily Democrat, can outline how harassment that occurred outside of working hours contributed to her claim of a hostile work environment.

During her employment, she was sexually harassed by two managers, Frank McSweegan and Wayne Chick. In her deposition, Ms. Rowe describes a time when she was having drinks with a female coworker after work at a nearby bar, and Mr. McSweegan approached her and began leaning against her even when she asked him to stop. Later that evening, he approached her from behind and “rubbed himself on [her] like he was having sex.” She states that the other manager, Mr. Chick, also regularly harassed her at work by routinely calling her names such as “sweetheart”; making sexually-charged comments to her and others, such as “nice ass” and “let’s get a room”; saying that she “owed him”; making frequent off-color jokes; and massaging her shoulders without her consent. And despite her complaints to him, Mr. Chick did not stop.

Following all these instances, Ms. Rowe did the right thing. She reported this to her supervisor, and they all had a meeting to discuss these claims. However, afterward, she noticed that more supervisors soon became highly critical of her work, and she was fired a month later.

Under Title VII of the Civil Rights Act of 1964 in the US, it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” At this current point and for this recent case, sexual harassment constitutes unlawful discrimination.

Ms. Rowe argued that Mr. McSweegan’s alleged sexual assault of her at the bar also contributed to the hostile environment plaintiff experienced at work. The judge noted that “in cases involving particularly egregious or pervasive harassment, the mere presence of the harasser in the workplace may lend support to a claim for actionable sexual harassment.” Yet, Ms. Rowe was not only exposed to her harasser’s abuse within the office but also outside of it.

Ultimately, the court favored Ms. Rowe for the contributing factor that because she notified her office of the incident in the bar and they did nothing to protect her from future harassment, they were found liable. For instance, outside the workplace, Ms. Rowe notified her company of Mr. McSweegan’s conduct, and they “ultimately did nothing to prevent Mr. McSweegan from continuing to harass her.”

The judgment for the case found that by “no stretch of the imagination can the court find that Mr. McSweegan was acting within the scope of his employment when he assaulted the plaintiff at the restaurant.” However, the company tried to fight back against the liability for the Firm and not the individual.

The judge found that “as an initial matter, ordinarily an employer would not be liable for the harassment or other unlawful conduct perpetrated by a non-supervisory employee after work hours and away from the workplace setting. However, this case has factors that require further scrutiny. Ms. Rowe was found in favor of the firm holding liability due to its inability to mitigate against the hostile work environment by not providing a reasonable avenue of complaint or taking any corrective action, even if the harassment does not persist after the target raises the issue.

What does this mean for companies?

The case above shows how, without proper channels for reporting and following up on harassment complaints, your company may be liable for harassment outside of the office.

As we can see, the target did everything right: she reported the complaints at the bar and inside the workplace to her supervisors, had a meeting with other supervisors to discuss a course of action, and was still fired in retaliation. A key takeaway for employers is that your employees, especially your managers, always represent your company, not just in your values but in their actions. Those actions can have consequences that can end up costing your firm a lot if not handled correctly.