While employers cannot police all employee conduct outside the workplace, employee interactions outside of work can – and do – impact the work environment. Indeed, under certain circumstances, inappropriate conduct by an employee outside the workplace may still subject an employer to liability. What constitutes actionable discrimination or harassment, triggering potential employer liability, is often a murky question. 

Several federal laws prohibit workplace discrimination and harassment, and many states have adopted their own anti-discrimination and harassment laws. Virginia and West Virginia, for example, have adopted the Virginia Human Rights Act (“VHRA”) and West Virginia Human Rights Act (“WVHRA”), respectively. Perhaps the most well-known and frequently cited law governing public and private-sector workplace harassment is Title VII of the Civil Rights Act. Title VII provides—like many parallel state statutes, including the VHRA and WVHRA—a civil cause of action against employers to address a wide range of discriminatory conduct, including workplace harassment. While the aim of these laws is to provide employees a civil remedy for discrimination and harassment occurring in employment, the reach of Title VII (as well as other state and federal anti-discrimination laws) can, and often does, extend beyond the four walls of the office and the typical 9-5. When liability will attach for out-of-office conduct is highly fact-specific.

The central question in these types of cases is whether the conduct has some nexus to the workplace or employment relationship. That nexus can be forged in any number of ways. Some of the easiest cases are out-of-the-office events that are still related to the employer, like charity events, team building, and attendance at conferences. While not the typical workday, these are clearly related to work.

The tougher cases are those where the link to the workplace is more tenuous. For example, an employer is generally not responsible for discrimination or harassment perpetrated by a non-supervisory employee, after work hours, and away from the workplace. Typically, however, employers do not see singular acts of discrimination or harassment. Instead, the out-of-work incident is coupled with incidents that did occur in the workplace. In these instances, the employer will need to take all of the at-issue conduct into account in devising an appropriate responsive action. And, even in the case of a single out-of-work incident, if an employee reports the incident pursuant to the employer’s anti-discrimination and harassment policy, some type of response from the employer will be required.

Different rules apply if the perpetrator supervises the employee, or if the perpetrator works in close proximity to the employee because the employee may legitimately perceive the work environment to be hostile or discrimination—even though the at-issue conduct took place outside of work. In these cases, it is almost impossible to unlink the nexus to work due to the working relationship between the perpetrator and complainant.

How the employer reacts when it learns of potential discrimination or harassment is critical. Even if outside-of-work conduct is actionable, employers can limit their exposure or avoid liability altogether by having a robust anti-discrimination and harassment policy and by taking actions to stop promptly and reasonably address the conduct once they learn of it.

How to Avoid Pitfalls
There are a number of preventative steps employers can take to avoid finding themselves in a lawsuit based on conduct that occurred outside the workplace:

• Develop written employee policies. Clarity is key. Memorializing prohibited conduct gives employees advance notice of what is deemed prohibited conduct. In the event an issue arises, employer can rely on these written policies and employees likely cannot claim any unfairness when the employer does so.
• Provide a clear avenue for employees to report harassment and discrimination. The law provides an affirmative defense to employers that have a written anti-harassment and discrimination policy that is communicated to employees and followed when instances arise. It is imperative that employers have consulted legal counsel to ensure their policies are compliant with the law.
• Investigate all complaints by employees, regardless of whether they arose outside the workplace. Acting swiftly to thoroughly investigate all complaints, no matter how minor they seem or where they arose, is key. You can always tailor your investigation to be commensurate with the nature and severity of the claims assertions. Regardless of the level of investigation conducted, doing so promptly signals to employees (and to a potential future tribunal) that the employer takes all complaints seriously and takes appropriate action if necessary.
• Be mindful of employees in supervisory roles. Supervisors present a greater risk of liability than non-supervisors because it is more likely that a supervisor’s conduct will be imputed to the employer. By virtue of their supervisory roles, supervisors can have more influence on the work-life of subordinate employees than non-supervisors—even if the conduct occurs outside of work. Supervisors also have the ability to make tangible employment decisions with respect to subordinate employees. It is therefore imperative that employers monitor and develop standards for the relationships between supervisors and their subordinate employees.

The Takeaway
Whether conduct constitutes workplace harassment often involves a fact-intensive inquiry and the consideration of legal nuances. Moreover, the best way to prevent claims of this nature is to have strong policies in place. Spilman’s labor and employment team is available to assist you in developing preventative policies, investigating internal complaints, or defending workplace harassment lawsuits, should the need arise.