Conduct outside of work, is it harassment?

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Q:  I joined a small tech company over the summer.  We are fairly informal.  No policies, handbook, training, etc.  On Fridays, someone usually runs out and buys beer, wine and pizza and the company picks up the tab.  Most of us stay and have a few drinks.  It is nice to get to know coworkers socially.  There is one guy though who weirds people out.  He is a manager too, so we are all shaking our heads when he starts going down a path of inappropriateness.  He tells raunchy jokes.  He recounts his “glory days” of his dating years before he got married.  After a few drinks, he gets worse.  Is this harassment?  It is really not part of our work day.

A: Your concern is valid, especially in today’s climate.  It seems like harassment is a daily topic of conversation now in most businesses.

You are right to be worried.  Your company is providing the space and picking up the bill for this Friday pizza gathering.  In most situations, employees would still understand that professional conduct is required.  However, alcohol often clouds judgement.  It sounds like your co-worker doesn’t understand that alcohol impairs his judgement.

Today, the lines between work and our personal lives are blurred.  Employees work remotely.  They connect to each other on social media.  They travel to client sites, share rides to the airport and attend professional events together.  All of this can be confusing to employees.   However, most employers still expect employees to behave in a professional manner, whether sharing an Uber or attending a tradeshow.

The law does not limit to just our work hours or the four walls of our offices.  Harassment can occur outside of normal work hours and outside of the office building.  Courts have consistently found employers liable for sexual harassment if the behavior (or some of the behavior) occurred during business travel or other work-related events.  Harassment can also occur electronically, via texts messages, email, social media or other messaging apps.

The behavior you are describing sounds like it could be the basis for a hostile work environment claim.  In short, a hostile work environment is created when there is unwelcome conduct, of a sexual nature, which makes others feel humiliated, intimidated or offended.  The Massachusetts Commission Against Discrimination (MCAD) may consider a number of factors when assessing whether the conduct outside the workplace constitutes sexual harassment for which an employer is liable:

  • whether the event at which the conduct occurred is linked to the workplace in any way, such as at an employer-sponsored function;
  • whether the conduct occurred during work hours;
  • the severity of the conduct;
  • the work relationship of the complainant and alleged harasser, which includes whether the alleged harasser is a supervisor and whether the alleged harasser and complainant come into contact with one another on the job;
  • whether the conduct adversely affected the terms and conditions of the complainant’s employment or
  • impacted the complainant’s work environment.

Some of the examples you shared are examples of behavior which could be identified as harassing behavior.  Jokes and discussing one’s own sexual activities are often outlined in a company’s harassment policy, as examples of inappropriate behavior.

If you have a Human Resources Representative, you should contact that person.  If there is no HR presence, alert your CEO or your manager.  This behavior has to stop.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

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