248-409-1900 dburke@mi-worklaw.com

By: Bill Pilchak – 6/9/15

Anyone reading my curriculum vitae knows that I have been professionally attuned to the subject of compulsive sexual behavior since the early 1990’s.   Knowledge of the underlying psychology has led to defenses in litigation where the accuser had actually acted out herself at work and then claimed sexual banter or activity to be unwelcome.

However, the greater problem for most employers is when supervisors sexualize the workplace as part of a broader pattern of behavior. The pattern need not be terribly dramatic to constitute a pattern.   Sexualizing conversations, double-entendres, subtle overtures, gauging of a subordinate’s interest in a relationship might all be part of a pattern, though not as dramatic or as self-destructive as serial affairs, reviewing pornography at work or the marital or legal problems that can occur in the lives of some compulsive individuals. Nevertheless, Freud noted that individuals with certain psychological conditions are likely to repeat patterns of sexual behavior and that has proven true in our practice.

The dangers of strict liability for a supervisor’s harassment is now so great under Federal law that employers should strive to avoid hiring supervisory employees if they have been involved in one or more incidents of claimed sexual harassment in the past. We have seen enough examples of supervisors, managers and executives causing repeated harassment problems for the same or successive employers to recognize that employers can avoid these problems by raising the subject during the interview process.

Here’s the tricky part: . Knowing that someone previously engaged in protected activity could lead to charges of retaliation if that applicant is not hired.   For the same reason, employers would never ask if someone had filed past discrimination lawsuits or charges of discrimination at past employers.

As such, employers who are inclined to inquire should document in some fashion that the interviewer is only interested if the individual has been ACCUSED. This documentation might consist of:

  • A written question on an employment application that is clear about what is and what is not being asked (as above);
  • Handing a written version of the question to the individual during the interview for clarity and to emphasize what is and what is not being asked;
  • Including the question (with specific language as to what is and what is not being asked) in written materials used by the interviewer to be read to the applicant verbatim. This “script” can be produced later, if the question becomes an issue.

So, what does an employer do when the applicant reveals a prior incident? The applicant should be asked detailed questions about the episode with an ear toward whether the applicant’s story makes sense. Here are some questions that might be asked:

  1. Who made the complaint (i.e., which position) what precisely did she/he complain of?
  2. What parts of her/his complaint were true and which were untrue?
  3. Can you think of any reason why she/he would make false allegations?
  4. Was there a written report? Do you have a copy? If not, what did the Company do as a result of the complaints? (i.e., did his/her employment continue; was there any discipline, delay of raises or promotions; did the company require training?)

In some cases, the employer may proceed to hire the individual despite revelations, concluding that the allegations were untrue or benign. Still, it would be wise if Human Resources kept an eye on this “newbie’s” relationships with subordinates until it is sure that he/she presents no problems.