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offensive behavior

Most internal investigation courses do a great job talking about the law and how it applies to offensive behavior complaints, but fail to educate their students on the psychology involved. Here are a few ways in which an investigator can follow the letter of the law and still lose:

Treat Your Employee as a Plaintiff

You may have the most laid-back company on earth, but as soon as an employee complains of sexual harassment, it’s a whole new ball game. Employment attorneys, whose job it is to CYA, immediately jump into litigation mode and begin to anticipate every possible legal curve ball that your employee could throw at them. This creates anxiety in HR professionals, which changes how they interact with the complainant.

The employee, who is already paranoid about what will happen now that she’s opened her mouth, has her worst fears confirmed. She feels like a pariah, she is left in the dark about what’s happening, and she is convinced that the retaliation she feared would happen has begun.

Ignoring the perception of bias

It doesn’t matter if you have the calm of the Budha or the rational mind of Socrates, if the parties involved think you are biased, then, for all intent and purposes, you are. Never think your stellar investigation will persuade them otherwise. There are ways to assess this at the beginning of the investigation; make sure you do. Otherwise, you run the risk of conducting an internal investigation, having a dissatisfied party, and then calling me to do another one.

Talking Like a Lawyer

“You are being terminated for sexual harassment.” Really? Last time I checked, sexual harassment is a legal finding that can only be determined in a court of law. The accused may be guilty of a violation of company policy or misconduct, but don’t call it sexual harassment. Only a judge or jury can decide this.

Focusing on the Wrong Issue

Yes, it is unbelievably frustrating when you’ve done everything in your power to encourage your employees to speak up – conducted highly interactive harassment prevention training, routinely asked your employees how things are going, queried about any interpersonal problems as part of the performance review – and your employee is silent as death. Silent, that is, until his performance is under the gun or you’re speaking to her about her tendency to under-dress.

However, now is not the time to express that frustration. I can’t tell you how many times I’ve been conducting an independent investigation and the complainant kept telling me how “all the HR person focused on was why I didn’t say anything before now.” Yes, the fact is relevant – it is pertinent when assessing the complainant’s credibility, it is relevant to possible motives, etc. However, don’t spend time interrogating your complainant about why she kept her mouth shut until now; it will come back to haunt you.

The Bottom Line

Conducting a good offensive behavior investigation isn’t just about following the law; it’s about understanding the psychology behind it.

Few things are as humiliating as being asked to discuss your sex life with someone you work with, or, potentially worse, a complete stranger. Whether or not you’ve done something that warrants it.

In fact, given the situation, it’s almost impossible for a person accused of sexual harassment not to become defensive. This can lead an investigator to conclude either a) the person must be guilty (why else would he be reacting this way?), or b) the person must be innocent (he must have been wrongly accused to be so upset).

In reality, the emotional reaction of the accused has little to do with whether or not the person actually did what s/he is accused of. In fact, whether or not the accusations are true, the person who’s been accused of sexual harassment often feels just as victimized as the person who’s made the complaint.

Common Mistakes When Interviewing the Accused

This can create problems for the investigator. Interviewing a person who’s been accused of sexual harassment can be as uncomfortable for the novice investigator as for the accused. As a result, it’s easy for him/her to fall into some common traps, such as:

  • using subterfuge in an attempt to get at “the truth.” This ploy usually involves a) trying to ambush the respondent, or b) failing to provide sufficient details to allow the accused to address the allegations against him or her. Employers sometimes try to take the respondent by surprise to see how he or she reacts to the complaint, thinking this will prevent the accused from having time to make up a story. However, the principle of procedural fairness dictates that the respondent should be advised that a complaint has been made and also advised that he or she will be given an opportunity to respond. Another error is to arbitrarily refuse to provide the identity of the complainant or details of the allegation in a sincere but misguided attempt to protect the complainants. However, failing to provide this essential information (without a very good reason, which will be discussed in a later article) makes it very difficult for respondents to adequately defend themselves.
  • acting as if the accused is guilty. Employers often suspend respondents during a harassment investigation. Doing so without pay, though, is tantamount to disciplining the accused before a determination has been made. In fact, using the word “suspension” – even with pay – is suspect. When needed, it is much more preferable to e to simply advise respondents (and complainants, where appropriate) that they will be placed on a leave of absence with pay until the investigation is complete.
  • subtly colluding with the accused. This trap is the other side of the investigative coin – showing bias in favor of the accused. This involves subtly implying that the complainant is either over-reacting or lying; this is especially likely when the complainant has a history of complaining or a poor work history. This can also happen when the accused is a high level executive or someone who is seen as too valuable to lose.

The Bottom Line

In the next article we’ll take a look at how to effectively interview the accused. For now, though, keep in mind that there are psychological traps, or biases, than can easily creep into interactions with the respondent. Fortunately, a bias recognized is the first step in a bias sterilized.

One of the biggest frustrations I hear from my plaintiff attorney colleagues is this; jurors (and most people for that matter) have a very hard time understanding why anyone would put up with sexual harassment for weeks or months without doing anything about it.

In fact, ask 100 people on the street what they would do if some creep at work was coming on to them and 90 of them will say they would take some kind of action – tell the person to knock it off, go to HR or punch the guy (or gal) in the mouth. However, if you ask 100 people who have been in that situation what they actually did, you’ll get very different answers. The vast majority will tell you they either a) tried to ignore it; b) tried to stay away from the person; or c) found another way to get out of there (asked for a transfer or quit).

The Top Reason Employees Keep Their Mouths Shut

So why don’t intelligent, usually assertive employees speak up right when the offensive behavior starts? Hands down, the number one reason is this: “I’m afraid of what will happen.” Most employees realize that once the proverbial cat is out of the bag, there’s no way to put it back in – and they no longer have control over where it goes.

Just about anyone who’s thought about speaking up is terrified of what will happen if they do. Before s/he speaks up, s/he is just a regular employee. However, the minute the employee complains about offensive behavior, s/he becomes something far more sinister in many executive’s eyes. A complainer. A prospective litigant. A financial threat. And, all too often, the corporate fear surrounding this new role gets communicated in a myriad of ways.

When the Fear is Justified

Unfortunately, some employees can cite very good, company-specific reasons why they should keep their mouths shut. “I saw what happened to the last person who complained.” “My manager does the same thing and no one cares.” “HR can’t keep their mouths shut.”

It’s not just about how previous sexual harassment complaints have been handled; employees are all too aware of how employee complaints in general are dealt with. An employee who walks through a manager’s open door policy only to encounter a closed mind behind it learns pretty quickly the difference between policy and practice.

So What’s HR to Do?

Fear of retaliation is natural. I don’t think there’s any way to completely alleviate it. However, there are some things HR can do to minimize it, both before and after a complaint:

  • The most important step senior executives can take in this area is simply to communicate ethical expectations more clearly to employees. In fact, research suggests that improving clarity of expectations and disciplinary guidelines can reduce misconduct levels by more than 40%
  • Managers and supervisors should be trained on how to handle employee concerns and how to instill a corporate culture in which employees raise concerns without fear of reprisal. Employees not only expect their managers to know what to do when faced with an offensive behavior complaint, they expect them to do it with tact and sensitivity.
  • All employees should be put on notice (e.g., through training and the employee handbook) that, if they punish another employee for raising a concern, they will be subject to disciplinary action.

Any manager who thinks employee silence is golden should consider that the longer offensive behavior goes on, and the harder a company makes it for an employee to complain, the more likely it is that what’s golden will be the bank accounts of the attorneys involved.

Dear Employees,

At our company, we like to pretend that we have a zero tolerance for offensive behavior. This is to make our legal and HR department happy. In reality, we don’t care what you do as long as you’re getting your job done and making us a profit.

This is especially true of our managers. Look, your manager got promoted because she was better than you. As such, s/he gets special treatment and will not be held to the same behavior standard that you will. So don’t even think that, just because your manager gets away with it, you will.

And, another thing. Your manager was hired to make money. S/he does not like taking time out of his or her valuable day to listen to a bunch of whining about something someone else said or did. So don’t be surprised if he or she is annoyed when you make a complaint. And don’t be surprised if he or she isn’t quite as friendly afterward; after all, you’ve blown the whistle on somebody that you work with. That’s not part of the “good employee” code.

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The Role of Managers in Offensive Employee Behavior

Any lawyer would go screaming into the street at the thought of his or her corporate client adopting this kind of offensive behavior policy. So would HR. And yet, this “policy” is communicated by the actions and attitudes of managers who either participate in, or turn a blind eye, to dishonest, ethical or illegal behavior.

Managers commit more fraud, steal more money, and does so in larger amounts than rank-and-file employees ever did, yet they often have exempt status when it comes to accountability for their behavior. In addition, their attitudes and practices establish the caliber of management oversight. When managers are perceived as uncaring or unconcerned about abusive behavior, the blind eye is perceived as an approving eye.

The Bottom Line

What management does is much more important than what management says. Managers who stand by, or participate, in offensive behavior significantly infleunce the level of management or subordinate tacit or direct involvemnet in abusive behavior, the legnth of time this behavior goes on, and why employees who have knowledge or reasonable suspicion of wrongdoing do not expose it.

In the stress and strain of work, most employees will at some point say or do something we regret. An employee will say the wrong thing. A manager may unthinkingly betray a confidence. The good news is that there are often simple things a manager or coworker can do to repair the relationship. The first – and often the most effective – is an apology.

How to Apologize and Mean It

  • Make it genuine. – Anyone can spot a backhanded apology and it will do more harm than good. For example, “If I offended you, I apologize” is a fake apology: It’s like stealing someone’s wallet, and saying, “I’m sorry if you felt you were inconvenienced.” A genuine apology is aimed solely at taking responsibility, not implying that the other person is somehow at fault.
  • Know what you’re apologizing for. ‘I’m sorry’ means absolutely nothing if you don’t know what you are apologizing for. If you don’t already know, ask the person. There’s a huge difference between saying, “I’m sorry” and “I’m sorry I made fun of your new haircut. It was insensitive of me, and I didn’t mean to hurt you.”
    Don’t make excuses – Excuses push the blame onto someone or something else, and it weakens the apology. Sure, a brief explanation may help understanding, but if you are busy explaining why you did what you did, it will start to sound like you aren’t apologizing at all.
  • Back what you say with what you do –An apology is an admittance of wrong-doing, not a free pass to do it again. In fact, if you can’t commit to changing the action or words you’re apologizing for, don’t apologize. “Sorry I kept you waiting so long” will be a hollow and ineffective apology if you keep doing it. You’re better off thanking the other person, “Thanks for your patience. I appreciate it” and taking it from there.
  • Apologize for them, not for you. – The mistake many people make when apologizing is that they expect forgiveness. This is not about you; it’s about the person you hurt. Some people will behave indifferently, some will behave coldly, and some will react in a downright hostile way. You can’t get angry or defensive. If the person declines your apology, you have to let it go and realize it’s their prerogative. If you apologized sincerely, you have done all you can do.

Many managers and employees have the genuine fear that they will say something completely innocuous and the next think they know they will be met at the office with notification of a lawsuit against them. My response is always the same. The best defense is a good offense. If an employee or manager has built a work relationship build on accountability, trust and respect, the odds that s/he will cross the line with someone is minimal. And, more importantly, if s/he does, the other person will believe the other person’s explanation because of the positive history they’ve shared.

Remember; apologies don’t change the past. But, when given with sincerity, they can change the future.