LIFE’S LESSONS* Summer 2014, Real Issues…Reconstituted Facts

WHEN IS ASKING SOMEONE OUT SEXUAL HARASSMENT?

A single request for a date does not amount to sexual harassment, or does it? That all depends on whether there is a back story. Let’s consider what can unfold….
Jerry, age 27, was recently hired as an associate at Acme. Jerry does not have any direct reports, but he has been assigned as a summer intern mentor. Jerry was invited to Acme’s summer welcome event, at which he met Paula, an intern in the department, who is entering her senior year at college.

Jerry was struck by Paula’s easy laugh, and the following day he initiated a conversation with her over Acme’s instant messaging system. Over the next several weeks, Jerry regularly IM’d Paula, asking about her hobbies and interests, and sharing information about himself. Paula never initiated the exchanges, but she would reply. Once, Jerry invited Paula and her mentor to join him and his intern mentee for lunch. Paula declined due to a conflicting meeting with her supervisor.

Another day, Jerry suggested that Paula and her friends join him and some of his coworkers at a local bar after work hours. Paula had plans with her friends that night. While they briefly stopped by the bar, she did not talk to Jerry. The next morning, Jerry emailed Paula, and suggested they meet for lunch since they had not talked the previous night. Paula replied at 6 pm, explaining that she had an upcoming project deadline and had been working all day, including through her lunch hour.

A sandwich and box of chocolates were waiting on Paula’s desk the following morning, with a note, “We take care of our interns. Hope today is better. J”. Jerry IM’d Paula at 2 pm, and asked if she had enjoyed her lunch. On Friday, Jerry invited Paula out to a concert that weekend. Paula declined. Jerry emailed Paula that Sunday, explaining that he liked her and wanted to get to know her better, and he would have thought that, in a difficult job market, she would want to have friends putting in a good word for her with Acme. Paula showed the email to a friend, who urged her to go to HR.

Has Jerry gone too far?

Probably. While Paula never outright rejected him, all their interactions were one-sided. Assuming the content of the IM conversations was appropriate, Jerry’s escalating invitations present a concern. In isolation, the joint lunch with Paula’s mentor might be fine. When followed by the bar and lunch invitations, and then the sandwich, chocolates and note, though, Jerry’s conduct becomes more “creepy”. As the older and more senior employee, Jerry should have appreciated the subtle cues of Paula’s avoidance tactics.
Most problematic is Jerry’s final overture. In context, the concert tickets were not simply a request for a date. And Jerry’s reply email could be viewed as retaliatory, even if Jerry does not actually have the authority to influence Acme’s employment decisions with regard to Paula.

Consider the back story

It is the back story that makes all the difference in these situations, as well as the power disparity (actual or apparent) between the parties. And while there are many good reasons for businesses to assign junior staff to mentor their summer interns, it is crucial that these junior staff be reminded of workplace policies regarding appropriate conduct, how these policies extend to social interactions outside the workplace, and how power disparities between the junior staff and the summer interns can alter the connotation of seemingly innocent invitations.

* In my years of legal practice, there are certain recurring issues that cross a range of industries and circumstances. This column presents a hypothetical factual situation as a vehicle to substantively review these recurring legal and employee relations issues.

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