Can a Hostile Environment Claim Arise From Conduct Between Employees Outside the Workplace?

Usually not – the recent Gillis v. Wal-Mart case out of Oregon provides a vivid example.

In Gillis, an employee went to see a co-worker’s private gun collection after hours during which the co-worker told her and her husband he could “easily pick them off with a sniper rifle.”  The co-worker was understandably shaken and complained to the employer who responded by transferring her.  The U.S. District Court found that, among other reasons, since the conduct occurred outside the workplace, was not work-related, and didn’t alter the employee’s work conditions, the hostile environment claim failed as a matter of law.

What are the practical implications of this “off-site” factor for employers dealing with hostile environment allegations?  For one thing, the investigation of a hostile environment complaint should carefully reconstruct what, when, and where if an alleged hostile environment claim arises.  Often employees will make claims in conclusory ways and build into their presentation their opinion about how an incident affects working conditions.  But especially when a run-in or exchange between employees occurs off-site, subjective impressions should take second place to the objective facts necessary to establish a valid hostile environment claim.  Factors that an employer should consider include, but are not limited to:

  • Where did the incidents occur?
  • Have they been replicated in the workplace?
  • Were they related to the job?
  • Was a supervisor involved?

Precise questions can make all the difference when an employee’s complaint involves fraternizing after-hours in conditions the employer does not create or control.  When addressing an “off-site” complaint, consider drawing a chronology of the complaint and carefully note what conduct, if any, was on-site and what conduct was off-site.

Of course, troubling allegations, even if they occur off-site and after-hours, will require careful analysis before final disposition and may merit consulting with legal counsel or taking corrective action.  For example, incidents that occur during overnight business travel may be sufficiently work-related to merit employer action.

Takeaways:  After-hour interactions and socializing between employees is commonplace and can certainly give occasion to negative incidents with the potential of a hostile environment complaint.  But as the recent Gillis case out of Oregon illustrates, with the right investigation, an employer may be able to properly determine that what happened at happy hour can stay at happy hour.

About Neal Buethe

Neal Buethe is Head of Briggs and Morgan’s Employment, Benefits and Labor Section. Neal represents professionals, executives, for-profit employers, and non-profit organizations in employment and related matters. He is general counsel to several non-profit corporations, including religious organizations. For Neal’s full bio, click here.

Posted on June 10, 2013, in Discrimination and Harassment. Bookmark the permalink. Leave a comment.

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