After The New York Times published an explosive report in October 2017 detailing decades of sexual harassment allegations against Harvey Weinstein, dozens of women came forward with their own accusations against the Hollywood mogul. Within a week Weinstein had been fired from his company and expelled from the Academy of Motion Picture Arts and Sciences.
Now, in a post-Weinstein world, legions of women have felt empowered to speak out and share their own #MeToo stories both on social media and in news outlets. The reports against the powerful producer sparked an avalanche of accusations against high-profile men in media, politics, Silicon Valley, and Hollywood, all with varying degrees of repercussions. Sexual harassment in the workplace is certainly nothing new, but it’s safe to say the issue is now, rightfully, taking center stage.
The general manager of a Massachusetts car dealership testified at trial that he “honestly didn’t believe” a finance manager when she told him that her supervisor often commented on her anatomy, tried to throw coins down her blouse and suggested they sleep together so he could see her breasts.
The finance manager, who was fired after making complaints, ultimately was awarded $200,000 in punitive damages because her employer failed to properly investigate her allegations. That’s on top of $40,000 in compensatory damages for emotional distress.
In ruling that punitive damages were warranted, the state’s high court issued a scathing review of the company’s handling of the woman’s grievances. In fact, it reads like a primer on what not to do in sexual harassment inquiries.
“The investigation was marred from the beginning” because of the general manager’s bias against the accuser, according to the court. The general manager and the HR manager at Lexus of Watertown Inc. claimed to have conducted separate investigations but couldn’t produce any notes. And the court found it particularly concerning that they couldn’t find anything to support the woman’s allegations, even though many of the incidents she reported were supported by other employees at trial.
The case is just one example of how a poorly conducted investigation can harm an organization’s bottom line as well as its long-term reputation.
In the recent flood of sexual harassment allegations involving high-profile individuals in various industries, HR professionals have been criticized for being unwilling or unable to investigate such complaints. They’ve been accused of protecting their organizations, or at least the powerful individuals at their helms, at the expense of the harassed workers.
In fact, some HR leaders are asking experts to guide them through mock investigations to give them more practice, while others are requesting workplace climate assessments in an effort to uncover problems earlier. No one wants to wake up one morning and find their company in the news.
Almost two-thirds of Americans, or 64 percent, say sexual harassment in the workplace is a serious problem, up from 47 percent in 2011, according to a recent Washington Post-ABC News poll. Thirty percent of women surveyed have experienced unwanted sexual advances from male co-workers, and 23 percent said they were harassed by men who had influence over their jobs. Of those who reported being subjected to harassment at work, one-third said they were sexually abused. Only 42 percent of the women reported the inappropriate behavior to a supervisor, and 95 percent said the men went unpunished.
While workplace investigations in general are considered one of the toughest parts of an HR professional’s duties, investigating sexual harassment complaints can be particularly challenging.
“It’s an embarrassing subject for folks, which is why we often don’t hear about it for decades,” “In most situations, it’s not about sex, it’s about an abuse of power.”
So, it’s very difficult for someone new to a job or in a low-level position to report harassment. “It’s not just that they’re afraid of coming to HR. They’re afraid of the consequences. ‘What happens if I lose my job? What happens if I’m identified as a troublemaker? What happens if I lose my job and they give me a bad reference?’ ”
Frequently, the employee who is being harassed just wants the offensive behavior to stop, she says. That’s why it’s important to be sensitive to the individual’s turmoil, explaining that, “We don’t want you to be subjected to this. We have to look into this.” Then determine whether it’s necessary to take steps to protect the individual’s physical safety and to block any retaliation.
All sexual harassment allegations should be investigated, although some inquiries will be more extensive than others. If you write anybody off, you could later be accused of not taking their complaints seriously.
Likewise, she notes, a superficial or sloppy investigation will send the message to employees “that the organization doesn’t care, that the organization thinks I’m lying, that they’re protecting a person of power.” And an employee who might have been upset and sad before could turn angry. Mad means money in court.
What Is Sexual Harassment?
Sexual harassment is defined by the law. According to the University of Michigan Sexual Assault Prevention and Awareness Center, “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when either:
The conduct is made as a term or condition of an individual’s employment, education, living environment or participation in a University community.
The acceptance or refusal of such conduct is used as the basis or a factor in decisions affecting an individual’s employment, education, living environment, or participation in a University community.
The conduct unreasonably impacts an individual’s employment or academic performance or creates an intimidating, hostile or offensive environment for that individual’s employment, education, living environment, or participation in a University community.”
Sexual harassment is a form of Sex Discrimination occurring in the workplace. A key part of the definition is the use of “unwelcome.”
There are two types (generally): quid pro quo and hostile environment.
Quid pro quo means “this for that.” Implying that a certain things will depend on the individual submitting to conduct of a sexual nature. For example, implying that a promotion will occur only if the employee goes on a date with their supervisor.
Hostile environment sexual harassment occurs when the conduct of sexual nature is intimidating, threatening or abusing
The first step is to determine the scope of the investigation.
What is the main question the investigator wants to answer?
HR professionals often come to her wondering how they got off track. They start an inquiry but then it grows until they feel like they’re conducting multiple investigations. “It’s classic scope creep. You have to make a decision.
Is this related to the original investigation?
Do I need to launch a new investigation?
When do I have enough?”
Having a plan will help guide the investigator through the various steps.
Other questions to address in the plan include:
*Who will investigate?
*What evidence needs to be collected?
*Who will be interviewed?
To protect the credibility of the process, you may want to bring in an outside investigator. That’s a good idea, for example, when the person accused is a high-level executive or if those on the HR team lack the experience and training to conduct such an inquiry themselves.
“In my current role, I work closely with the C-suite every day,” If I was conducting an investigation about one of them, other people in the company might have a hard time believing in my objectivity because these are people I work with day in and day out.
Choosing an objective third party not only provides a stronger defense for the employer if a case ever goes to court, it can also make it easier for business leaders to make the right decision, even if it means terminating someone who is a strong financial asset.
It’s important not to label the parties as ‘victim’ and ‘harasser,’ as that creates the appearance and a very real possibility of a predetermined resolution. “If you go into this thinking this person is a victim, there’s a very good possibility that your investigatory questions are going to be swayed and not be as objective as needed to make a decision.”
Some basic steps for every investigation include the following:
Prepare interview questions in advance. Collect needed details from the person making the allegation the who, what, when and where.
You might also ask “Were there witnesses?
Did others know you were upset by this?
Did you talk to family members or friends?”
Try to ask open-ended questions to ensure that you have a full picture of events.
Gather evidence that might support or negate the complaint. This might include voice mails, text messages, e-mails, photos, timecards, business expense records and social media posts. For example, electronic messages might show that a male supervisor made inappropriate sexual comments to a female subordinate. On the flip side, if workers need a key card to enter the worksite, building access records might show that the person accused likely wasn’t in the building at the time of the alleged incident, Cole-Johnson suggests.
Check past performance evaluations and prior complaints. Consider whether the person making the allegation might be seeking retribution for a poor evaluation. “You have to leave your mind open to all of this. Unfortunately, this sometimes happens,” although less frequently than some suggests.
Also evaluate any past complaints against the person being accused. Contact former employees, particularly the individual who previously held the accuser’s job or anyone in the same department who left suddenly without explanation, to find out if they also had problems with the accused employee.
Document every step. Take careful notes throughout the interviews. Record who wasn’t available and why. Some HR professionals even ask interviewees to sign off on the written summaries of their statements. Be aware that any written evidence might well end up being scrutinized in court.
That goes for the HR team as well. A sexual harassment investigation “can’t be treated as juicy gossip, drama or a soap opera,” “It can have such a long-lasting effect on the company and people’s careers.”
Ultimately, you’ll need to decide whether a company policy was violated or inappropriate conduct occurred and recommend a course of action to the decision-maker.
If the allegations are supported, the employer should take immediate and appropriate corrective action, which could range from a written reprimand to termination of employment depending on the severity and frequency of the misconduct, experts say. Make sure high-level employees are given the same treatment as low-level employees for similar conduct.
After you’ve submitted the written report to the decision-maker and determined the appropriate disciplinary action (if any), follow up with both parties. Tell the person who filed the complaint that appropriate action was taken, even if you can’t share the details for privacy reasons.
Check back with that employee regularly to ensure that no further harassment has occurred and that there has been no retaliation, which could trigger additional liability.
That follow-up shows the person who made the complaint that HR took it seriously, White says. In many highly publicized recent cases, the alleged sexual harassment and abuse reportedly had been an open secret for years. After one person came forward, the floodgates opened.
Learn more about what the law says about sexual harassment Here.
Joe Levin
T.O.T. PRIVATE CONSULTING
