Can you ask a co-worker out on a date?
The long and the short of it in most situations is yes. But not persistently, repeatedly or creepily. What constitutes ‘creepy’? Well, for example knowing they are in a relationship and still asking them out on a date, persistently asking despite them indicating that they are not interested, asking in inappropriate or embarrassing situations, constantly making comments about what they are wearing and their appearance, standing too close, inappropriate touching or brushing past them, buying inappropriate gifts, following them, or sending lewd messages, texts or pictures.
However, in practice the situation can be quite ambiguous and may be perceived very differently by the parties involved, as illustrated in this real-life case study.
Case Study
As always, to be better prepared you do a bit of research and find out that your workplace has a formal sexual harassment policy (for free information about what needs to go in a sexual harassment policy click here). However, your workplace polices are completely silent on whether having a relationship with a co-worker is appropriate.
You dig a little deeper and find out that sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth) and your local State legislation. You discover;
- Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour: Australian Human Rights Commission.
You also find a reference to a case example of an employee in a small food company who claimed the owner repeatedly asked her out, as well as frequently kissing her on the cheek and commenting on her looks. This behaviour could constitute sexual harassment.
Apart from the issue of what may be sexual harassment, under some circumstances even consensual personal relationships between co-workers may breach a workplace code of conduct. This is a controversial and contested matter and, depending on the context, a ban on consensual sexual relationships between co-workers may be legally unenforceable. However there have been several cases of senior executives being summarily dismissed after intimate personal relationships with a co-worker have come to light. For example, late last year McDonald’s global CEO was dismissed over a consensual relationship with another senior employee, while previously there was a dismissal involving Intel’s chief for what the company described as “a violation of Intel’s non-fraternisation policy”. Provided a workplace’s professional code of conduct is clearly published and explicit, it may well be enforceable and in practice there may be a very fine line between what is viewed as a ‘private’ consensual relationship between co-workers and one which is deemed inappropriate and unacceptable within an organisational culture.
- Some examples of behaviour that may be sexual harassment include:
- Sexually suggestive comments or jokes
- Intrusive questions about your private life or physical appearance
- Inappropriate staring or leering
- Unwelcome hugging, kissing or cornering or other types of inappropriate physical contact
- Sexually explicit text messages, images, phone calls or emails
- BUT what if it didn’t happen at work, how can you be held liable for inappropriate conduct or sexual harassment when it happened off-site? You also find out that a workplace includes:
- where the harasser and the person being harassed work together even if offsite
- on the phone, via text, messenger, social media
- on work-related trips, conferences, training events, office parties and functions
- education institutions
- in shops, restaurants or anywhere goods and services are provided.
After looking at your workplace policy and undertaking preliminary enquiries (speaking to both parties), you decide that under these circumstances and based on the above the manager’s behaviour could constitute sexual harassment and actually could be quite serious. You are worried because if you don’t do anything the complainant might lodge a complaint to an external body like HREOC or your State Commission. But if you go ahead and do something then the manager might make a complaint about you! And, on top of it all, you have been working with the manager for a long time and feel compromised.
What do you do now?
In previous and future videos you will hear me make suggestions to encourage the parties to try and work it out between themselves in the first instance. However, there are a few reasons you wouldn’t encourage this under these circumstances:
- This complaint is serious.
- The power imbalance. The complainant reports to the person she is complaining about.
- The response of the manager does not demonstrate any insight into his behavioural responsibilities.
Because you have now decided that this complaint is serious you need to make sure that you follow your internal workplace policies and procedures. Generally, the first step would be to undertake a robust workplace investigation into the allegations raised by the complainant. You can do this internally, or you can engage an external provider to undertake this investigative work. Once a workplace investigation has made Findings about the allegations then you (or a more senior person) can determine whether further action is warranted based on that investigation report.
Undertaking a workplace investigation takes skill and can be very complex. We are not covering workplace investigations under this present topic, but we will have a separate discussion on this important area soon. So, ‘Like’, share and subscribe for further updates.
Anna Faoagali
National Practice Manager
Emverio Workplace Solutions
Workplace Mediations, Workplace Investigations, External Whistleblowing and Complaints
Resources:
Human Rights and Equal Opportunity Commission
Legislation
Sex Discrimination Act 1984 (Cth)
